Opinion
09-08-1898
STATE ex rel. BOARD OF HEALTH OF RARITAN TP. v. HENZLER.
Fluck & Parker, for the motion. H. L Stout, opposed.
Suit by the state, on the relation of the board of health of the township of Raritan, against Charles A. Henzler. Defendant moves to dismiss the bill for want of equity. Overruled.
The bill is filed to get an injunction restraining the defendant from maintaining an alleged nuisance. The bill sets out the organization of the board of health for Raritan township; that said board on April 13, 1888, passed a code of ordinances, among them one declaring the keeping of any pen of swine or slaughter house in such manner that offensive odors shall emanate therefrom, to the discomfort or to the detriment of the health of persons living or passing in the vicinity thereof, to be a nuisance. The ordinance fixes a penalty for maintaining such a nuisance. The bill sets out that the defendant has a large pen, about 200 feet square, in the village of Flemington, in said township; that defendant now has, and has had, in said yard, about 30 nead of hogs and pigs; that, on the days when defendant (who is a butcher) slaughters, he collects the blood and entrails, and carts them to and throws them Into this hogpen. The bill charges that this hog yard is in a thickly-settled part of the village of Flemington, there being no less than 10 families within 300 yards of the pen; that it emits foul odors, and contains offensive matter, so as to be detrimental to the health of the people living in the neighborhood of the pig yard; that people living in the neighborhood are compelled at times to keep the windows and doors of their houses closed, because the stench is so unbearable, besides being hazardous to the health of persons living near, as well as that of the public who pass and repass. The bill sets out that notice has been served upon defendant to abate the nuisance and remove the pigs, which he has refused to do.
Fluck & Parker, for the motion.
H. L Stout, opposed.
REED, V. C. (after stating the facts). The first ground of attack upon the bill is that it does not sufficiently set out the passage of an ordinance declaring the nuisance. The defect insisted upon is that the bill does not state that the ordinance was legally published. I am not aware, however, of any rule of pleading which requires that the steps required to be taken by a municipal or quasi municipal body in passing an ordinance must be specially noticed in a pleading grounded upon the existence of such an ordinance. All that is requisite is a general charge that the ordinance exists. In respect to a municipal ordinance, it need not be alleged that all proper formalities were observed in its passage (Hardenbrook v. Town of Ligonier, 95 Ind. 70); nor allege power in the corporation to enact the ordinance (City of Janesville v. Railroad Co., 7 Wis. 484); nor to refer to the charter or general law conferring the power (Village of Winooski v. Gokey, 49 Vt. 282). But the ordinance set out can be struck from the bill, and its absence will not change the complexion of the case made.
The bill charges, in the clearest way, the existence of a public nuisance maintained by the defendant. It needed no ordinance to impress the condition of affairs displayed by the bill with the character of a nuisance.
Nor does the power of the board of health depend upon the existence of an ordinance. For the extirpation of nuisances per se, the board can act as protectors of the public health without a code of ordinances. This power is expressly affirmed in section 24 of the act of 1887 (2 Gen. St. p. 1640). Under the circumstances as they appear in the bill, the board had the right to file its bill. This right is conferred by section 28 of the act just mentioned. State v. Bergen Co., 46 N. J. Eq. 173, 18 Atl. 465.
It is urged that a notice by the board to the owner of the property upon which the nuisance is maintained, to abate the same, is aprerequisite to the filing of bill to compel its abatement Assuming that the requirements of a notice as a condition precedent to a right to summarily abate applies as well to abatements by judicial procedure, yet the notice served upon the defendant was sufficient. It is criticised upon the ground that it directed the defendant to remove his pigs, and it is said that the presence of the pigs was not necessarily noxious. But the notice also directed him to abate the nuisance, which, as the bill states, he has not done. As already observed, the facts in the bill charge a public nuisance. It is to be observed that the suit mentioned in the argument (i. e. Board of Health and Vital Statistics of Hudson Co. v. New York Horse-Manure Co., 47 N. J. Eq. 1, 19 Atl. 1098), in which the chancellor held that the nuisance must appear to have inflicted a special injury on one or more individuals residing in its vicinity, was brought under another act. It was a suit brought by a county board, and the language of section 9 of the act of 1884 (Supp. Revision, p. 344, § 9) is that in such suit the court shall take proceedings and grant injunctions as in case of proceedings taken in the name of one specially injured in person or property. The motion to dismiss is overruled, with costs.