For the prosecutor, Samuel J. Davidson.
For the respondents, Joseph Frederick Bratt (George F. Losche, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. Three writs of certiorari were obtained to test the penalties imposed upon the prosecutor by the Recorder of River Vale Township for the violation of R.S. 26:3B-7 (Pamph. L. 1945, ch. 192, p. 654), which provides:
"No person, corporation or municipality knowingly shall maintain or permit to be maintained any accumulation of filth or source of foulness which is hazardous to the health or comfort of any of the inhabitants of this state."
These are companion cases and the situations complained of are similar except as to dates. The three complaints allege violations on June 27th, August 8th and August 11th, 1945, respectively. In each case judgment for $50 and costs were entered against the prosecutor.
The health officer testified as to his knowledge of the defendant's plant, having seen it in operation. There were large quantities of chicken manure on hand. It was shoveled into the mouth of a cylinder which was heated in order to dehydrate the manure, and it emerged as fertilizer. Three or four tons of wet, raw chicken manure produced one ton of fertilizer, while two or three tons of "wetness" went into the air as "foul odor." The odor in the plant was "musty;" outside it was very offensive. There was a "stink" while the plant was in operation. Many complaints were made about it.
Other witnesses testified the odor was "very obnoxious," "terrible," a strong "ammonia smell" like "acid in nostrils," "very uncomfortable," and made the witnesses feel "bilious," with a tendency to "perspire" and become "nauseous." A child of one of the witnesses could not play out of doors because the odor was so offensive.
The defendant offered no testimony at the trials as to the facts and now seeks to have the judgments rendered set aside. The appeal raises four questions: (1) Was the prosecutor unlawfully deprived of his right to a trial by jury? (2) Was the complaint insufficient? (3) Was improper testimony admitted? (4) Is the statute unreasonable and unconstitutional, violating the Fourteenth Amendment of the federal constitution? We are compelled to answer all in the negative.
The right of trial by jury in cases of the instant type was clearly expressed in McGear v. Woodruff, 33 N.J.L. ...