Opinion
10-29-1903
BOARD OF HEALTH OF CITY OF PATERSON v. CITY OF SUMMIT.
Michael Dunn, for the motion. C. N. Williams and R. V. Lindabury, opposed.
Suit by the board of health of the city of Paterson against the city of Summit. Heard on application for preliminary injunction, on bill affidavits and affidavits in reply. Preliminary injunction denied.
Michael Dunn, for the motion.
C. N. Williams and R. V. Lindabury, opposed.
EMERY, V. C. (orally). Act March 24, 1897 (P. L. p. 99), on which this bill is based, is one whose scope is very broad. It is intended to prevent the pollution of the Passaic river above the Great Falls at Paterson, and it provides several things relating to such pollution. 1 will only refer to those portions of the act which relate to the question immediately at issue now, which is the discharge of the sewage into the river by the city of Summit. The first section provides that "no person or persons, natural or artificial, shall discharge or cause to be discharged into the waters aforesaid [that is, any waters of the Passaic or the tributaries above the Great Falls of the Passaic at Paterson], any sewage from any privy, water-closet, house or shop, drain or place whatsoever." Now, that provision is absolutely independent of the question as to whether such discharge affects injuriously any person who, as a riparian owner or otherwise, has a right to the use of the water as potable water, either by direct use themselves, or by its collection in reservoir storage for the purpose of general public supply. It is a provision made in the exercise of what is called, in State v. Wheeler (Sup. Ct. 1882) 44 N. J. Law, 88, the police power of the state, which must be exercised by the Legislature, and which the Legislature has the right to exercise. My present impression is that the Legislature has the right, when the time arrives, in its judgment, for the passage of such legislation, to direct that no sewage shall be discharged into the rivers of the state that are the sources of water supply. I also think that the Legislature may itself select the time when these regulations should apply to each river, and that such regulation of the waters of a river is not a regulation of the internal affairs of the counties and towns that happen to be located along the route of the river, within the prohibition of the Constitution against such internal regulation. It is a matter of general police protection, and, as it now strikes me, the circumstances that would regulate the protection of the supply are and must be to a certain extent peculiar and special to each river, and must be disposed of by the Legislature upon its own investigation and judgment. So that the mere fact that this act regulates the discharge of sewage into a single river, and only upon a certain portion of that river, does not strike me as a regulation beyond the police power of the Legislature, or as interfering with the internal management of the towns along its route. That is my present view upon that point, but I do not mean to decide the question of the constitutionality of the law upon this motion. I will assume for the present purposes that the law is constitutional, and will decide the application upon the rights given to complainant by the statute. This law is a law of a new and peculiar character, and that provision of it which forbids the discharge of any sewage into the river is independent altogether of the question as to whether such discharge actually creates, or can be shown to create, a nuisance to anybody who has the right to the water, and independent of any property rights in the water. Such legislation is based manifestly on the police power of the state alone, and the rights so derived must be exercised and enforced solely in the way in which the Legislature provides. And this limitation is specially applicable in the present case, where the right of complainant is not based on any claim of nuisance to the relator as riparian owner or the owner of any property rights in the waters, but rests solely on the statutory right of the relator, as the agent selected by the Legislature to enforce some of the police regulations established by the act. All the cases which have been referred to by counsel for complainant have been actions which have been based on injuryto the property rights of the complainant by reason of the deprivation of a common-law right to the water. In the Paterson case the relators were property owners and residents along the Passaic, who had the right to pure water, and to the use of water that was not contaminated by sewage. In the Newark case (the Sayre Case) Sayre was a property owner who had the right to the use of his property undisturbed by the effluvia threatened by projecting near it the contents of a sewer. The rights protected in these cases were personal or property rights, which were protected against the commission of nuisances, and the appeal to the jurisdiction of the Court of Chancery was an appeal to its jurisdiction to prevent nuisance. This is not a case of that kind. This is a case in which the complainant is a local board of health, and its rights, whatever they are, to the maintenance of this action in chancery, are statutory, and purely statutory. It owns no property bordering on this river; it owns no property in the water of this river; it does not itself collect and deliver the water; this is not an action by the city of Paterson to protect its reservoirs; it is not an action by persons who own the waters and have the right to draw the water for the purpose of the supply; It is purely a statutory action given the relator, as the local board of health, under this statute, for one purpose, and for one purpose only. Now, on looking at this statute, it will appear that there are two things that are provided against in the different sections so far as relates to the point now at issue. In the first place, there is in the first section a provision that no person or persons, natural or artificial, shall discharge or cause to be discharged in the waters of said river any sewage from any privy, water-closet, shop, drain, or place whatsoever. That provision relates merely to the discharge, and nothing is said in this section about dealing with the structure on private property from which the discharge comes. The second section deals with the structure. It says no person, natural or artificial, shall maintain or erect, or cause or permit to be maintained or erected, any privy, water-closet, slaughterhouse, or other structure, the drainage from which might or would tend to pollute the waters or any part of the waters aforesaid, within such a distance of the banks of the said Passaic river, or of any of the tributaries thereof, above the Great Falls of the Passaic river at Paterson, as would make the drainage from any such privy, water-closet, slaughterhouse, or other structure be liable to drain into the waters aforesaid, or any part thereof, by surface drainage, percolation, or otherwise. This section is the section in reference to the maintenance of structures, and is the only section in the law that makes any reference to the character of forbidden structures. The jurisdiction which has been given to this court, upon application of the board of health, under the statute, relates solely to the question of abating the forbidden structures which are maintained. The statutory application is not at all based on a right of preventing the discharge of the sewage into the river. For that violation of the act a penalty is appointed, a penalty of $20 a day, to be sued for in a particular way. The seventh section (page 101), which is the one conferring jurisdiction on this court, says: "Any of the local boards of health hereinbefore referred to may file a bill in the Court of Chancery in the name of the state, on the relation of such local board of health for an injunction to prohibit the maintenance of anything the maintenance of which is hereinbefore prohibited." The eighth section says that "in case it shall be ascertained that anything is maintained contrary to the provisions of this act, the Court of Chancery shall have power to abate and prevent its further maintenance by injunction or otherwise." The entire power of this court, on the application of the relator, under this statute, is confined to the abatement of the structure which the city of Summit has constructed for its sewage system filtration, as a structure the maintenance of which is prohibited by the second section of the act. The bill in the prayer asks such abatement, and this, as it now seems to me, is the entire scope of the power of this court. Independent of that statute, on application of the board of health, it has no jurisdiction whatever over the alleged nuisance. On the application of a riparian owner, or on the application of the persons who own the water and have the right to take it for the supply of the city, or perhaps on the part of the city which takes the water supply, the Court of Chancery might have jurisdiction to enjoin a nuisance. But on the present application of the board of health, the entire jurisdiction of this court is confined, by the act under which it applies, to the abatement of the structure which is claimed to create the nuisance. Now, if this is the only jurisdiction in the case, it evidently is one which in this case cannot be exercised on application for preliminary injunction. On this application, where the hearing is on ex parte affidavits, I cannot now give any order to stop the flowing of the sewage, because even on final hearing in the suit the decree could only extend to the abatement of the structure. If it should be made out on final hearing that this is a structure from which the drainage tends to pollute the Passaic in violation of the act, then the only decree that can be made in this court is that the structure must be abated, but in the meantime there is no provision given by the statute, on the application of the board of health (independent of any property rights; independent of the question of actual nuisance satisfactorily established), authorizing this court to order that pending the suit the flow must not be discharged. Such order would virtually prejudge the case on thatpoint. In looking over the bill I see that it does ask that this entire structure, which has been maintained contrary to the act, be abated. In my view, that is the entire remedy that can be asked at the end of the suit, and I have no jurisdiction under this act to touch at all the question as to the flow in the meantime, independent of any question of the property right in the water, which entitled the person to have pure water, or right to the actual use of the water to deliver it purely for purposes of public supply. I think, therefore, that on that ground I cannot order any preliminary injunction, and I make the decision at once, in order that, if there is any question of jurisdiction, it may be taken at once to the court of appeals.
There is one further point to which counsel's attention should be called, and that is as to whether this act applies to a case of this kind. I mean in this point of view—not for the reason that the city of Summit is not a person, as described in the act, for I am inclined to agree with the counsel of the complainant that an artificial person would include a city or other municipality, as well as any other corporation, and that the city of Summit, if it directly or indirectly erected any of the structures that are here described, would be subject to any proceeding for abatement under this act. The question is whether this act in its terms is not confined to the abatement of some structure like a privy, water-closet, slaughterhouse, etc., the ordinary use of which produces sewage, and from which the sewage originated in the structure itself goes directly to the river, and whether the act is intended to reach a structure that is intended for the bona fide purpose of purifying a sewage so that no real deleterious sewage will remain. The statute directs that no person shall erect or permit to be maintained any privy, water-closet, slaughterhouse, or other structure, the drainage from which might or would tend to pollute the waters aforesaid, within such a distance of the banks of the river as would make the drainage from any such privy, water-closet, slaughterhouse, or other structure likely to drain into the waters aforesaid. Now, this act in many respects is a penal act, as to which the general rule is that strict construction is applicable. Every one of these structures which are mentioned as things to be abated are things in the use of which, in the condition described, the injury is directly produced, in the ordinary use of the structure itself—a privy, water-closet, or slaughterhouse, from which the sewage there produced drains into the river. Now, in order that it might be extended to other structures, there is a clause which says, "or other structure, the drainage from which might or would tend to pollute the waters of the Passaic." I have doubts whether a structure like these filtration beds made for the purpose, and the sole purpose, of removing, so far as practicable, any possible deleterious effects of the sewage, and absolutely destroying its effects as sewage, would come within the language of that act prohibiting structures like privies, water-closets, etc. There is fair doubt about its application. I will not dispose of this motion on that ground, but on the ground that the utmost extent of the jurisdiction of this court in this case on final decree is the abatement of this structure, and that the court has no right, even by final decree, to enjoin the discharge, the penalties of which are provided for by other means. I cannot, therefore, on the ex parte affidavits, make any order enjoining the operation, pending the suit, of the sewer beds in the manner in which they have been operated for some years past and were operated at the time of the passage of the act.
The application for preliminary injunction is denied.