On appeal from the Municipal Court of the Township of Weehawken.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Heher, J.
The defendants New York Central Railroad Company and Coons appealed to the Appellate Division of the Superior Court from judgments of conviction entered in the Municipal Court of Weehawken upon complaints severally charging them with permitting or causing the emission of smoke from Central's power plant on Pershing Road, Weehawken, on October 8, 1949, between 8:30 P.M. and 9:30 P.M., "of a density greater than the density described as No. 2 on the Ringelmann Chart published by the United States Bureau of Mines," in contravention of an ordinance of the local Board of Health which embodied at length the standards of that bureau. Coons was Central's stationary engineer at the plant. The Appellate Division ordered the consolidation of the appeals for argument. Thereafter, we certified the appeals here on our own motion; and since there was uncertainty at the bar as to the right of appeal in cases of this class directly to the Appellate Division until the later determination of this Court in State v. Yaccarino, 3 N.J. 291 (1949), and the issues raised are of public concern, we granted defendants' motion on the oral argument for certification of the causes for appeal to the Municipal Court. Constitution of 1947, Article VI, Section V, paragraph 1(d); Rule 1:2-1 of this Court.
Section 2 of the ordinance denounces as a public nuisance the emission within the municipality of smoke of the proscribed density; and the insistence is that under Pennsylvania Railroad Co. v. Jersey City, 84 N.J.L. 716 (E. & A. 1913), and Jersey City v. Erie Railroad Co., 84 N.J.L. 761 (E. & A. 1913), such a direction against a railroad company is ultra
vires and void. The ratio decidendi of these cases is that the non-negligent emission of smoke from the smokestacks of locomotives used in the operation of a railroad is an irremediable incident of the exercise of the legislative franchise, and not within local control except as expressly provided. But it is said that the principle is by analogy applicable to a railroad power plant as a necessary operating facility. We do not perceive the analogy.
Quite different considerations govern the use of locomotives in the operation of a railroad through the State and the management of a local power plant such as we have here. It is beyond the local province to proscribe smoke in the operation of locomotives under a railroad charter, unless its escape be attributable to negligence or want of care. There cannot be in the nature of things a delegation of regulative power which in its varying local applications would render function under the State's charter impracticable. State v. Erie Railroad Co., 84 N.J.L. 661 (E. & A. 1913). The principle has no bearing upon the functioning of terminal facilities and fixed installations, such as engine houses and repair shops. Beseman v. Pennsylvania Railroad Co., 50 N.J.L. 235 (Sup. Ct. 1888); affirmed, 52 N.J.L. 221 (E. & A. 1889); Ridge v. Pennsylvania Railroad Co., 58 N.J. Eq. 172 (Ch. 1899); B. & P.R.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 27 L. Ed. 739 (1883).
The ordinance here does not offend against the cited principle. It is designed to "regulate and control air pollution," in the interest of "the public health and welfare," by barring the "excessive emission of dense smoke" within the confines of the Township. "Dense smoke," within the intendment of the regulation, is that which has "a density of No. 2 or greater as established by the Ringelmann Chart" therein incorporated. This proscription is indubitably within the competency of the local boards of health. The function of these agencies is to advance and secure the public health by means and measures reasonably appropriate to that end. The preservation of the public health is a vital element of the police power inherent in sovereignty.
The power thus exercised is within the grant contained in R.S. 26:3-64 and ch. 177 of the Session Laws of 1947, to be found also in N.J.S.A. 26:1A-9. The inherent general authority to conserve and protect the public health thereby conferred and recognized is not curtailed by the specific enumeration of R.S. 26:3-31. Atlantic City v. Abbott, 73 N.J.L. 281 (Sup. Ct. 1906); Schwarz Bros. Co. v. Board of Health, 83 N.J.L. 81 (Sup. Ct. 1912); affirmed on this point, 84 N.J.L. 735 (E. & A. 1913); Fenton v. Atlantic City, 90 N.J.L. 403 (Sup. Ct. 1917); Kurinsky v. Board of Health of Lakewood Township, 128 N.J.L. 185 (Sup. Ct. 1942); Potter v. Weleck, 131 N.J.L. 155 (Sup. Ct. 1944). The cited act of 1947 is affirmative legislative acquiescence in the judicial finding of the general power in the pre-existing statutes.
And there can be no doubt that the regulation under review has a substantial relation to the public health. Dense smoke, a carrier as it is of dust, soot and cinders, contaminates and pollutes the atmosphere and deteriorates its normal healthful attributes and qualities, and therefore cannot but be harmful to the public health, especially in populous areas. This is a matter of common experience, so much so that it is properly a subject of judicial notice. Rochester v. Macauley-Fien Milling Co., 199 N.Y. 207, 92 N.E. 641 (1910); Bowers v. City of Indianapolis, 169 Ind. 105, 81 N.E. 1097 (1907). In Garrett v. State, 49 N.J.L. 94 (Sup. Ct. 1886), it was indicated that the corruption of the air by noisome odors and smells, to the annoyance and inconvenience of the public, would constitute a public nuisance suppressible by the local board of health. It was said that the local boards of health were created "to prevent nuisances in conservation of the public health," and "to prevent disease and discomfort, such as might arise from contamination of air, water or food." See, also, Nicoulin v. Lowery, 49 N.J.L. 391 (Sup. Ct. 1887). At common law, an action of nuisance will lie for substantial discomfort or inconvenience. But the inconvenience must be more than fanciful; it is not actionable unless it is one "materially interfering with the ordinary comfort
physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people." Walter v. Selfe (1851), 4 DeG. & Sm. 322. The common law judges by no Spartan standards. The loss of even one night's sleep is not deemed a trivial matter. Andreae v. Selfridge (1937), 3 A.E.R. 261; Salmond on the Law of Torts (10 th Ed. 1945) 224. Of course, the standard of convenience and comfort varies according to local conditions and needs. It suffices to say as to this that the conditions constituting a nuisance at a given time and place may not be a nuisance at another time and place. And it may be added that the complexities of our modern society due in large part to congestion of population and concentration of industry and business impose an ever increasing demand for individual concessions to the common good. There are no constitutional restraints ...