These three appeals, consolidated for trial, are test cases to question the constitutionality of the municipal ordinances, the basis of the many penal proceedings recently instituted by the City of Newark, as one branch of its so-called slum clearance program. The technique of this branch of the program apparently is to compel the owners of individual properties to maintain such properties in good condition, the other branch being the creation of the well-known slum clearance projects. The defendant in these test cases was convicted of violating the ordinances in question by failing to maintain its premises in the required condition. On the present appeals, the Newark Citizens Housing Committee has been permitted to intervene as amicus curiae.
Defendant owner attacks its convictions in the court below not only on certain general grounds applicable to all three cases, but also on certain special grounds applicable to such cases separately. We turn initially to these joint grounds of attack.
THE ORDINANCES AS AN EXERCISE OF THE POLICE POWER.
Defendant's main contention originally was that the ordinances are unconstitutional, in that they do not protect the health and welfare of the public; thus are not a proper exercise
of the state police power, delegated for enforcement to the City of Newark; and, therefore, in their limitation of the defendant's property rights, constitute a taking of property without due process of law, contrary to the provisions of both the State and Federal Constitutions. (N.J. Const., Art. I, par. 20; U.S. Const. Amend XIV.) In support of these arguments, defendant calls attention to the well-settled principle of the common law that a landlord is under no duty to make repairs to leased premises unless he has contracted to do so, or the defective condition exists in a portion of the premises used in common by all tenants, there being no such promise, nor common use, here. Clyne v. Helmes , 61 N.J.L. 358 (Sup. Ct. 1898); Ross v. Tetradis , 7 N.J. Super. 224 (App. Div. 1950).
But, it has for centuries been of the essence of civilized society, where many individuals live as neighbors, that each must exercise his rights with due regard to the rights of all -- sic utere tuo ut alienum non laedas. Under such circumstances, this limitation of the rights of one, if necessary to protect the rights of all, is not a taking of property without due process of law, but, on the contrary, if properly carried out, is the use of due process of law for the protection of the rights of all. Mansfield & Swett, Inc., v. Town of West Orange , 120 N.J.L. 145 (Sup. Ct. 1938); Annett v. Salsberg , 135 N.J.L. 122 (Sup. Ct. 1947); Kugler v. State of Kansas , 123 U.S. 623 (Sup. St. 1887); Hudson County Water Co. v. McCarter , 209 U.S. 349 (Sup. Ct. 1908). The justification of this limitation of the rights of an individual thus lies in the need for the protection of the rights of others; these rights here being claimed to be the public health and welfare. The defendant hence contends that the ordinances in question, as sought to be enforced against it, do not tend directly and substantially to protect the health and welfare of the public. We turn accordingly to the consideration of the effect, if any, on the public health and welfare of the ordinances in question, and the complaints thereunder, on which the convictions resulted.
The complaint therein charges a violation of the provisions of Section 1039, par. 3 of the city ordinances, as amended and supplemented, in that defendant, being the owner of 22 Hillside Place, Newark, did "fail to keep at all times in good workable condition, free from leaks and defects the hot water boiler on the 2nd floor (Paterson) apartment and the kitchen hot water tank on the 3rd floor (Caskins) apartment," to this complaint being attached a previous notice served on defendant.
The pertinent portion of the ordinance in question provides that "the owner shall maintain in good workable condition, free from leaks or any other defects, the hot water storage tank, hot water pipes and the hot water apparatus."*fn1 The stipulated facts show that such hot water equipment was entirely within the possession and control of the respective tenants, that the defendant owner was not obligated by the rental to furnish hot water to them, nor to make repairs to them. Further, that while such fixtures were in useable condition at the time of the renting, and were used for that purpose by the tenant, they thereafter, during such tenancy, "became and remained unuseable." For the violation a penalty of $5 was imposed.
The complaint therein charges the violation of Section 982 of the Newark ordinances, as amended, in that defendant, being the owner of 218 Charlton Street, Newark, did fail to paint two rooms, after having been notified to do so by the Health Officer.
The pertinent portion of the ordinance in question provides that "The owner, agent, lessee or occupant of any dwelling or factory building or part thereof shall thoroughly cleanse all the rooms as often as shall be required by said Board or its officers, and shall when notified so to do, well and sufficiently whitewash or paint the walls and ceilings thereof."*fn2 The proof showed a violation of this ordinance in fact, for the violation of which a fine of $10 was imposed.
The complaint therein charges that defendant, being the owner of 172 Prince Street, Newark, violated the provisions of Section 1069 of the Newark ordinances, as amended, in that it did maintain a nuisance at that address by failing to repair defective plaster in several apartments, and by failing to repair a defective kitchen stove in one, "said condition being dangerous to human life and health." The pertinent portion of the ordinance in question provides that "Whatever
is dangerous to human life or health * * * is hereby declared to be a nuisance. Any person * * * who shall continue to retain or maintain any of them shall on conviction thereof forfeit and pay a penalty * * *."*fn3 For the violation thereof a fine of $25 was imposed.
In substance the first objection leveled by defendant owner jointly against his three convictions, and the municipal ordinances on which they are based, is that his failure to maintain in good workable condition for the use of his tenants hot water storage tanks in their premises, his failure to paint the walls and ceilings of certain of their premises, when notified so to do by the Health Department, and his failure to repair defective plaster and a defective stove in certain premises, did not, nor did any of them, tend directly and substantially to endanger the public health and welfare. However, while defendant vigorously ...