Summary
In State v. Neidt, 19 A. 318 (Ch. 1890) (not officially reported), in which a local board of health sought injunctive relief against a fat rendering establishment, the evidence showed that more than a dozen individuals living in the vicinity were made sick at their stomachs or nauseous by the odors; that some lost their appetites and were unable to eat their meals; and that they were forced to close windows to keep out the odors which continued with some frequency.
Summary of this case from State v. Sommers Rendering Co.Opinion
01-07-1890
STATE ex rel. BOARD OF HEALTH OF HAMILTON TP. v. NEIDT et al.
John Sykes, W. D. Holt, and James S. Aitkin, for relator. James Buchanan and G. D. W. Vroom for defendants.
Bill to abate a nuisance.
John Sykes, W. D. Holt, and James S. Aitkin, for relator. James Buchanan and G. D. W. Vroom for defendants.
BIRD, V. C. This bill was filed under the statute authorizing boards of health to abate nuisances hazardous to public health. It is met with the insistment upon the part of the defendants that it has not so proceeded as to give the court jurisdiction. It is urged that the notice required by the statute to be given by the board of health to the person owning the property, or engaged in the business alleged to be a nuisance, when such board of health itself intends to proceed to abate such a nuisance in a summary manner, is also required to be given when the proceeding is in this court. The provisions of the statute are in no respect so extensive. If the thirteenth, fourteenth, and twenty-seventh sections of the act referred to (see P. L. 1887, p. 80) be considered, it will be seen that the notices therein mentioned are only required to be given when the board of health proceeds by its own hand to abate an alleged nuisance in a summary way. Neither of the sections referred to authorizes such boards to proceed in the court of chancery. Counsel thought that, as a notice was required in case of summary proceedings, as was declared in the case of Hutton v. City of Camden, 39 N. J. Law, 122, such notice could not be dispensed with before suit was brought, notwithstanding the aid of this court was invoked by bill. It does not appear to me that the case referred to has any such absolutely controlling application. Authority for coming into this court, and the mariner of coming, are given in the twenty-eighth section. It provides "that any such local board of health, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may file a bill in the court of chancery, in the name of the state, on the relation of such board of health, for an injunction to prohibit the continuance of such nuisance, and such actions shall proceed in the court of chancery according to the rules and practice in such cases on the relation of individuals." Not only is a notice not required by this section, but it is expressly provided that such proceedings may be carried on by such boards as in case of bills filed by individuals.
The real question is, does the evidence produced show that the alleged nuisance is hazardous to the public health? Without this, the relator must fail. For it is not every nuisance that may be assailed or removed under the statute. If it renders home simply uncomfortable, or depreciates the value of property, or only amounts to an annoyance to individuals or communities, no authority is given to boards of health to interfere. In such cases relief must be sought by the individual or the community. In thedetermination of the vital question I think that the act should be liberally construed; the object thereof being the promotion of the public welfare. This view seems to be abundantly sustained by the great breadth or scope of the act; its provisions extending not only to thickly or densely populated districts, such as cities or towns, but also to townships, thereby including the most sparsely settled districts. But what is of the highest consideration, and what the state places beyond all comparison, this act aims at,—the preservation of the life and health of the individual. When this is taken into account, courts are bound to lend their aid to the enforcement of the law by every reasonable construction.
The established facts in this case to which these principles apply will now be presented. More than a dozen individuals who lived within three-quarters of a mile of defendants' works were made sick at their stomachs by these odors, or nausea was produced. One of these was so affected that he was sick for at least two days, while another suffered a loss of appetite, and was unable to eat at the return of several periods for meals. In one family, odors were so bad that they produced sickness, and they could not eat without closing all the windows. The effect was so striking that a carpenter was made to feel so badly that he was obliged to quit his work, and the sensation was such to the taste that he says he could fairly taste it next morning. Other carpenters refused to work because of the foul stench. Two, at least, were made to vomit, while in others retching only was the effect. A number of families within the range named were compelled to leave their porches for the dwelling, and to close their windows, in order to protect themselves from the odors.
Having the principal facts before us, what conclusions are to be drawn therefrom? We will be aided to some extent in this undertaking by the judgment of the physicians who were placed upon the witness stand. These gentlemen agree that the simple odor arising from a properly conducted fat rendering establishment is not detrimental to the public health. But, in case the odors be of a character that produces frequent nausea, retching, or vomiting, they are not so fully agreed as to its result. Dr. Hunt, who is a member of the state board of health, says: "There is no disease which is the outcome of inhaling odors. Its effect will be indirect, such as being sick, and that might produce ill health; and another indirect cause would be compelling people to keep their windows closed, and thereby depriving themselves of sufficient fresh air." Dr. Shepherd says: "I hold that the odor from the rendering of fat is not necessarily injurious; all offensive odors are not injurious. Question. The question is, under the facts in this case, as they have been detailed, whether such odors make a person of delicate stomach, we will say, or otherwise, sick at the stomach, causing nausea, is hazardous to the health of the public or not. Answer. Not unless it is continuous. If it is continuous, of course it would be. There is no odor, no matter from what source it comes, that keeps up a continuous nausea but must be detrimental to the public health. Q. What degree of frequency must this nausea be to make it detrimental to the person's health? A. If it is continually repeated every day, or every other day, of course it would have an injurious effect. It would prevent the retention of food, and a person without being able to retain his food, and have it properly digested and assimilated so as to strengthen the tissues,—of course that must be detrimental to health. * * * Q. Suppose that the odors were so strong that they were compelled to close the windows and shut out the air from the outside, what would be the effect upon the health then? A. It would be injurious. It is necessary to breathe pure air; that, everybody knows. Q. You don't regard the atmosphere arising from the fat rendering establishment a pure atmosphere? A. Certainly not. Q. And when an atmosphere becomes so impregnated with the odors that it becomes necessary for people to keep their windows and doors closed, to exclude it from the house, is it necessarily injurious? A. Certainly. Q. What would be the effect of an odor arising from decomposing animal flesh? A. Any unpleasant disagreeable odors, continually inhaled, has an unpleasant effect on the health; that is, I mean on certain individuals, not upon everybody, as it is shown by those who continually work among these disagreeable odors without any deleterious effect, day after day, year after year; but everybody is not constituted alike." This question was put to Dr. Robbins: Question. Do you say, now, that the tendency of a strong odor of melting fat is not to make a person of weak or delicate stomach sick?" To which he answers: "I say it might." And this he repeats by saying: "The tendency might be to make some people sick." He also says: "If these odors be intensified to a sufficient degree, they would be injurious to public health." Dr. Barwis says, in answer to this question: "State the general effect of such smells,— whether or not they injuriously affect the health of the public or community or neighborhood in which this factory is located. Answer. I would state that they do not, but quite to the contrary." This question was also put: "Question. Suppose that this nausea was frequent, would it have any effect upon the health?" To which he answers: "Answer. If it was frequent—that is, constant daily nausea—it might; but the fact of the matter is, it is not, because they have become accustomed to it, and it does not affect them; that is the history of all these cases." He does not consent to the correctness of the statement that if odors produce nausea every day, or every other day, that it necessarily has a tendency to injure the health. He says: "I think if a man is able to keep a meal in his stomach a day he could get alongvery well. If he vomited two, and kept one down, he would get long very well. I think I could." Dr. Rogers, who agrees with the last witness as to the innocent effects of these odors generally, nevertheless says, in answer to the following question: "Question. Then people living in that neighborhood, receiving these odors, who are sick, we will say daily five minutes by nausea, and it then passes away, you would regard that as deleterious? Answer. I should suppose it would be deleterious to their health." It should be added, as of some importance, that Mr. Matthews, in speaking of these odors, seemed to fully admit that they may be regarded as a nuisance, whether in the sense contemplated by the statute or not. When addressed upon the subject, he said they would introduce machinery to overcome the odors. It also appears that the defendants have availed themselves of the recent improvements in machinery for that purpose, and have greatly reduced the strength or volume of the noxious odors.
Independently of the judgment of these physicians, I could not very well help concluding that the odors complained of were and are hazardous to the public health. My mind cannot be released from the conviction that when such smells not only compel citizens to retire from their porches and close their doors and windows, both by day and night, and thereby be deprived of a constant supply of fresh, wholesome air, but also cause nausea and sickness of the stomach, and produce retching and vomiting, and oblige them to forego their meals, that we have then presented very strong proof of hazard or peril or danger to the health of those so affected. But while the testimony of the physicians called by the defendants would, so far as their direct examination extends, raise the impression that such odors are simply unpleasant, and that there is no risk whatsoever to health; yet a careful study of the cross-examination clearly shows that their views coincide with my own, with the exception perhaps of that of Dr. Barwis, whose judgment is that a person may vomit two meals a day and be assured of good health, providing he can retain one.
These views seem to be in accord with those expressed in the case of Butterfoss v. State, 40 N. J. Eq. 325, which had the approval of the court of errors and appeals. In that case the odors arose from what was denominated "refuse discharged from a tomato canning establishment;" such refuse consisting of large quantities of water, and the juice, seeds, and skins of the tomatoes used. Portions of this refuse was carried by gravity along a certain street and sewer every day, while large portions were retained in a pool near by the establishment for much longer periods of time. The proof was that the odors arising from this refuse, as it flowed along the street and sewer, were very offensive, causing nausea and other more unpleasant sensations. The testimony of two eminent physicians was that such odors were not only not unhealthy in their tendency, but were absolutely purifying; while others declared that the tendency was not only depressing and enervating, but to invite disease. In the case before me the odors arise from the rendering of fat from the bodies of horses and other animals which have recently died, and from the refuse of all sorts obtained from butchers' establishments', capable of yielding fat. The question in the one ease, as in the other, is whether the odors that are discharged are hazardous to the public health or not. I am unable to reach any other conclusion in this case than was found controlling in the case cited.
I think no little error has arisen in the minds of many in the consideration of these cases from the want of proper comprehension of the true application and extensive meaning of the hazard, as used in the legislative enactment. I think a strong impression prevails that the act has no application, and that the board of health is powerless, except in cases where the threatened mischief is absolutely destructive of health, and that that consequence will follow beyond a peradventure. In other words, unless the result will be disease inevitably, as much so as in case of the presence of cholera, small-pox, or yellow fever, or the plague, the public authorities are powerless under the act. The argument of those who so reason upon the subject rests, not upon the ground of risk, possibility, or hazard, but of absolute certainty. As intimated above, the act is not confined to any such strict or narrow limits. The legislature could not very well have employed a more significant phrase than it did in the use of the word "hazard," to open the way for the broadest and most liberal construction. It seems to me that the intention was to submit to the board of health, and to the court of chancery, the power of determining in every such case whether or not every such nuisance may, in any reasonable event, tend to the inviting, generating, fostering, or promoting of disease. This must be so, since the question is not whether there is a nuisance or not; for the whole argument is predicated upon the fact that a nuisance exists. Therefore the whole inquiry is, is there any hazard, danger, or peril to the public health from its presence? Is the tendency such that, from the common sense of mankind, human experience, and scientific observation, disease may thereby be disseminated, either directly or indirectly? for, in either case, the hazard contemplated by the statute exists. This view excludes any and every presumption that because a citizen is engaged in lawful business, which in the ordinary sense of the term becomes a nuisance to his neighbor, that, therefore, it is such a nuisance as is contemplated by the statute, hazardous to the public health; and because it is such a nuisance, although only so in the common-law understanding of the phrase, the authorities may proceed against it under the statute.
I will advise a decree that the nuisance complained of shall be abated,—that is, to the extent that it works hazard to the public health,—to the extent and in the manner indicated above. It does not follow from this that the business in which the defendants are engaged must necessarily be discontinued at the place now occupied by them in carrying it on. Such business being legitimate, and the court believing from the testimony that it may be conducted without violating the statute or the decree of the court, the court certainly has no right to go beyond the prevention of the mischief which the statute was aimed at. The relators are entitled to costs.