MORFORD et al. v. BOARD OF HEALTH OF ASBURY PARK. (Supreme Court of New Jersey. 1898. 61 N. J. Law, 386, 39 Atl. 706.) Certiorari by the State, on the prosecution of Harry W. Morford and others, against the Board of Health of Asbury Park, to review an ordinance of defendant. Judgment below set aside. Argued November term, 1897, before VAN SYCKEL, DIXON, and COLLINS, JJ. VAN SYCKEL, J.16 The controversy in this case relates to the validity of the following ordinance, certified into this court: "Be it ordained by the board of health of the borough of Asbury Park. "Sec. 43. Every stable or building which may be hereafter constructed or reconstructed in the borough of Asbury Park, in which any horse, mule or cow is kept or stabled, shall be so constructed and drained that no fluids, excrement or refuse liquids shall flow upon or into the ground. All of the surface of the ground, beneath every stall, in every such building, and for a distance of at least four feet in the rear of every such stall, shall be covered and protected from pollution by a water-tight floor, or covering, which shall be constructed as follows: Where the said water-tight covering rests directly upon the ground surface, the said covering shall consist of concrete made. with finely broken stone, one part; sharp sand, one part; hydraulic cement, one part, or coarse gravel, two parts; hydraulic cement, one part; to be laid at least three inches in thickness. Upon this concrete foundation a layer at least two inches in thickness of best asphalt, or a layer at least two inches in thickness of coal-tar concrete, or a layer at least two inches in thickness of cement concrete made with sharp sand, one part, best Imperial Portland cement, one part, shall be laid. When the water-tight covering is not in contact with the surface of the ground, it shall rest upon joist or floor beams three inches by ten inches, laid twelve inches from centers, and it shall consist of spruce or yellow pine planking, two inches thick and six inches wide, with beveled edges, and it shall be closely laid so that the joints shall be V-shaped, and be open at the top one-quarter of an inch. Said joints shall be calked with oakum and be made watertight. Every such water-tight covering shall be laid upon a grade not less than one-eighth of an inch to each foot, and shall be so drained that all fluids which may fall upon it will be conveyed to a street. sewer or otherwise disposed of subject to the terms of a permit from this board. Portable wooden racks shall be placed upon all such asphalt, coal-tar, concrete or cement concrete floors within said stalls. Said wooden racks or floor coverings shall be constructed of spruce strips, two inches in thickness, made in two sections and they shall be so placed that they may be readily removed for cleaning. 16 Only a portion of the opinion is printed. * * * Any person or persons or corporation who shall offend against any of the provisions of this section shall forfeit and pay a penalty of one hundred dollars." The board of health derives its power from the following legislative acts: By the act of February 22, 1888 (2 Gen. St. p. 1642), boards of health are given power to adopt ordinances; to compel, prescribe, regulate, and control the plumbing, ventilation, and drainage of all buildings, public and private, and the connection thereof with outside sewers, cesspools, or other receptacles, etc.; and to secure the sanitary condition of all buildings, public and private. Again, by the act of March 29, 1892 (2 Gen. St. p. 1644), power is given to regulate the keeping of all kinds of animals, and to regulate and control the accumulating of offal, and to secure the sanitary condition of all public buildings, and to protect the public water supply, and to prohibit and remove any offensive matter or abate any nuisance in any place, public or private. The act of 1888 also requires plans for the plumbing, ventilation, and drainage of buildings to be submitted to the board of health for inspection and approval. While the courts fully recognize the importance of the powers granted to boards of health, and give them a liberal construction, such boards will be confined in their interference with the lawful business of any individual to such interruptions and regulations as may be reasonably necessary to enable them to abate any nuisance he may create in conducting it. Weil v. Ricord, 24 N. J. Eq. 169. The prosecutors insist that the statutes under which boards of health are constituted do not empower them to prescribe the manner in which stable floors shall be laid with the strictness and particularity contained in the certified ordinance, and that it is therefore unreasonable and void. In Gregory v. Mayor, etc., 40 N. Y. 273, the board of health had power to carry into full execution whatever the health and safety of the citizens required. The New York court held that, in the exercise of such authority, the board could not order generally that all sinks and privies be removed as nuisances, but must find the existence of the nuisance as a fact, and exercise a specific judgment as to the necessity for removal. The Massachusetts statute in general terms authorizes the boards of health to order the owner or occupant of premises at his own expense to remove a nuisance. In Reservoir Co. v. Mackenzie, 132 Mass. 71, the supreme court denied the power of the board to prescribe the exclusive manner in which it should be removed, namely, by filling with gravel, earth, or some proper material, to the satisfaction of the board, flat lands which caused the alleged nuisance. The court declared that the owner had the right to adopt the alternative of excavating or dredging the flats, or keeping them covered with water. This ruling was in conformity to the view which prevailed in Salem v. Railroad Co., 98 Mass. 431, 96 Am. Dec. 650, where the owner was not restricted to the mode prescribed by the board of health for removing a nuisance. In Health Department v. Lalor, 38 Hun, 542, the statute provided that the drainage and plumbing of all buildings should be executed in accordance with plans previously approved in writing by the board of health, and in consequence of such specific authority the owner of property was prohibited from departing from the plan so approved. It is well settled that, in order to uphold the action of boards exercising a special statutory jurisdiction, authority for it must be found in the positive law. In our statutes, before referred to, the power is given in general terms to the board of health to pass ordinances to regulate the drainage of stables. There is no language which authorizes the board to prescribe a mode to which stable owners must rigidly conform. On the contrary, the act of 1888 expressly recognizes the right of the stable owner to submit plans for drainage to the board for approval, and this negatives the idea that an ordinance may lawfully be' adopted which will deprive the owner of that privilege. The conclusion which results from this view of the statute is, not that the ordinance is void, but that the owner is not restricted to the manner of laying the, floor which is prescribed by the ordinance. The ordinance stands as a protection to those who conform to it. If the owner secures the sanitary condition of his building by adopting some other plan, he is not amenable to prosecution. In departing from the directions contain-j ed in the ordinance, he takes the risk of creating a nuisance. If the plan he resorts to is a failure, he may be held for the penalty, not on, the ground that he has not conformed to the plan specifically set, out in the ordinance, but on allegation and proof that his stable is a nuisance. Whether, in this case, the complaint is in such form, and the ordinance so framed, that upon proper proof the penalty could lawfully be imposed upon the owners of the stable, it is not necessary to decide. The justice before whom the proceedings below were had convicted the owners of the offense of violating the ordinance, and imposed the penalty for that alleged offense, and not for maintaining a nuisance. They may have violated the ordinance without committing the offense of creating a nuisance. No conviction could lawfully have been had except for maintaining a nuisance. The judgment below must, therefore, be set aside.17 17 Compare Durgin v. Minot, 203 Mass. 26, 89 N. E. 144, 24 L. R. A. (N. S.) 241 (1909). SECTION 5.-SAME-CONDITIONS ANNEXED TO GRANT OF LICENSE REG. v. BOWMAN et al., Justices. (Jligh Court of Justice, Queen's Bench Division. [1898] 1 Q. B. 663.) Rules to justices for the borough of South Shields for a certiorari to bring up an order granting a license to one John Duncan to sell intoxicating liquors to be quashed, and for a mandamus to hold an adjournment of the general annual licensing meeting and hear and determine according to law an application by the said Duncan for a license. At the general annual licensing meeting for the borough of South Shields held on August 25, 1897, John Duncan, who was at that time the holder of three licenses to sell intoxicating liquors within the borough, applied for a provisional full license to sell intoxicating liquors on certain premises then about to be erected. The hearing of the application was adjourned to September 29, when Henry Yooll and John George Patton, being inhabitants and ratepayers of the said borough, attended the licensing sessions and opposed the application. At a further adjourned session held on November 3 the chairman of the licensing committee stated that the justices had decided to grant the license on condition of the three existing licenses being surrendered and of a sum of £1,000. being paid by Duncan to the justices. The conditions having been performed, the license was granted, and the grant was subsequently confirmed. Messrs. Yooll and Patton thereupon obtained the above-mentioned rules for a certiorari and a mandamus on the ground that the justices in annexing the said conditions. to the grant of the license were acting illegally and outside their jurisdiction. It was admitted by them that it was the intention of the justices to apply the £1,000. so paid by Duncan in reduction of the rates of the borough, or for some other similar public purpose. WILLS, J.18 This is a case of considerable importance, but it is one which presents no difficulty as soon as the facts (which are not in dispute) are ascertained. It is clear that any member of the public has a right to be heard in opposition to an application for a license, and, having such a right, he is entitled to be heard according to legal principles. If the justices allow themselves to take into consideration matters which have no bearing upon the merits of the case before them, and which influence their minds in arriving at their decision, it cannot 18 Parts of the opinions are omitted. FR.ADM.LAW.-3 be said that the objector has been heard according to law. In the present case the justices stated that they were prepared to grant the license upon the terms that the three existing licenses then held by the applicant should be surrendered, and that he should further pay to them a sum of £1,000. for some public purpose. As to whether the justices were entitled to attach the condition of the surrender of the old licenses I will express no definite opinion, though as at present advised I incline to the view that they might lawfully have done so, as the number of the licensed houses which the needs of the neighborhood demanded was one of the matters which they had to consider. But the condition of the payment of £1,000. was wholly unjustifiable. If authority were needed, it is enough to refer to the case, which was cited, of Rex v. Athay, 2 Burr. 653. The justices had no more right to require the payment of money for public purposes than to require that it should be paid into their own pockets. If the attachment of such a condition were allowed to pass without objection, there would soon grow up a system of putting licenses up to auction-a system which would be eminently mischievous and would open the door to the gravest abuses. No doubt the justices were acting in perfect bona fides and in the interests of the public. But their conduct was none the less illegal. There has been no real hearing, and the mandamus must therefore go. * * * DARLING, J. I entirely agree. The justices have here done a thing which in a few years' time they may perhaps be allowed to do.19 They have sought to make vendors of intoxicating liquor, and through them the persons who indulge in it, bear more than their ordinary share of the public burdens. It has often been suggested that a law to that effect would be a very proper one to enact. But it is not law yet. If ever it is made the law it must be by the authority of Parliament, and when Parliament does so enact it will no doubt take care to specify the particular public objects to which the money is to be applied. The justices have here approached the consideration of the case with preconceived theories as to the proper distribution of the unearned increment of value arising from the grant of a license to particular premises, and have allowed those theories to influence their decision. Under those circumstances it is enough to refer to Reg. v. Adamson, 1 Q. B. 201, to show that a mandamus must be allowed. 19 The power was given by Licensing Act 1904, § 4. * |