Opinion
Argued May 5, 1942 —
Decided June 3, 1942.
1. A permit to keep swine should not be refused, unless the refusal be necessary in order to promote the public health, safety and welfare.
2. The proofs examined show that all the farms surrounding relator's farm are piggeries. In fact, there are 85,000 pigs in the township. There appears in this case to be no basis for the refusal of a permit to keep pigs to the operator of a farm so surrounded by swine.
On mandamus.
Before Justices BODINE, HEHER and PERSKIE.
For the relator, Lynwood Lord.
For the defendants, James B. Avis.
This is a return of a rule to show cause why a writ of mandamus should not issue to compel the issuance of a permit to the relator so that he may lawfully keep swine on his farm in the Township of Deptford. He applied for a permit in 1941, which was denied. At the time that he was notified that the permit would be refused he had spent a large sum of money in building pens.
His present application was refused because he had previously been convicted of keeping swine without a permit and, secondly, because the Board of Health did not intend to issue more permits. The first ground was without merit, because the conviction involved no moral turpitude. The second is no more substantial. All the adjoining farms are operated as piggeries. There are 85,000 pigs in the township.
The exclusion of relator from this prevailing business was arbitrary and could, in no way, promote the public health, safety and welfare. Spur Distributing Co. v. Bridgeton, 122 N.J.L. 460. Restrictions upon the production of food should not be countenanced.
Relator may have a peremptory writ, with costs.