For the prosecutors, Thomas Brunetto.
For the defendant, Harry Amsterdam (Abraham M. Herman, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The point of inquiry is the legal validity of an ordinance enacted on April 13th, 1936, by a body purporting to be the board of health of the Township of East Hanover, in the County of Morris, entitled "An ordinance to regulate the dumping upon or the filling up of vacant lands or any grounds."
The prosecutors, John Earruso and Mary, his wife, ever since the year 1921, have conducted a hog-raising business on their tract of farm lands comprising thirty-two and one-quarter acres, situate on the Whippany River, within the named township, and consisting in part of lowlands and "swamps covered with water the greater portion of the year." They also carry on the business of collecting and disposing of the garbage, ashes, refuse and debris of neighboring municipalities. The collections so made are deposited upon their premises; and the ashes and the like are used for "filling in the lowlands" thereof, and the garbage as food for the hogs, the surplus being "used for fertilizing purposes." They now have three hundred pigs upon the lands; and it is stipulated that they "are unable to gather sufficient garbage to feed their pigs within the township," and that "grain or other food is more expensive, and therefore" they "must bring in garbage from other municipalities." The nearest dwelling is one thousand feet from the pig pens. "Tuttle Manor, a residential development," is within the vicinity.
On July 2d, 1936, prosecutors made application to the board of health for a permit to dump upon their premises garbage, ashes and debris collected in the Township of East
Hanover and municipalities nearby; and the board, by resolution adopted on October 1st, 1936, granted leave to dump only "the garbage, refuse and debris collected by the prosecutors while performing the then existing contracts which they had for the collection of garbage, ashes and debris with other municipalities outside of East Hanover township." One of these contracts, made with the borough of Roseland, in the county of Essex, does not expire until 1940. Since the adoption of the ordinance, prosecutors have entered into a contract with the Town of Morristown for the removal of its garbage.
First: The first insistence is that the ordinance is a nullity for the reason that, at the time of its adoption, the body so exercising the functions of a local board of health had no legal existence. We find it to be devoid of substance.
The Township of East Hanover was incorporated by chapter 31 of the laws of 1928. Pamph. L., p. 50. While the record is deficient in this respect, it seems to be conceded that a board of health was properly constituted under the provisions of section 10 of chapter 68 of the laws of 1887, page 84, as amended and supplemented (Comp. Stat. 1910, p. 2662; Rev. Stat. 1937, 26:3-9), consisting of the members of the township committee, the township assessor, and a physician appointed by the township committee. Chapter 33 of the laws of 1923 (Pamph. L., p. 66; Rev. Stat. 1937, 26:3-10) was not applicable. The population of the township then was, and still is, less than twenty thousand inhabitants.
However, on June 2d, 1932, the municipal governing body, pursuant to the authority conferred by chapter 312 of the laws of 1926, later amended (Pamph. L. 1926, p. 522; Rev. Stat. 1937, 40:87-17, et seq.) adopted an ordinance abolishing the office of assessor and creating a board of assessors consisting of three members. Upon the organization of this newly created body, the township clerk was designated as the fifth member of the board of health, succeeding the assessor whose office had been abolished, in the exercise of ...