[9 NJSuper Page 435] These three appeals, consolidated for trial, are, like those involved in City of Newark v. Charles Realty, Cty. Ct. , 74 A.2d 630, test cases to question the constitutionality of the heating ordinance of the City of Newark, one of the various municipal ordinances, the basis of the many penal proceedings recently instituted by the city as a branch of its so-called slum clearance program. The defendant in these three cases was convicted of violating the heating ordinance, and it attacks its conviction on various grounds, set forth below. Its main contention is that such ordinance is unconstitutional as an invalid attempt to exercise the state police power, delegated to the City of Newark. In this court's decision in City of Newark v. Charles Realty , above alluded to, the legal authority of the city and its Board
of Health to adopt ordinances to protect the public health and welfare is shown, as well as the fact that, if an ordinance does substantially protect the public health and welfare, and is not so unreasonable and arbitrary in its effect upon the rights of the individual defendant, as to constitute a taking of property without due process of law, it is a valid exercise of the state police power. No words need thus be added on that score.
That it does tend substantially to protect the public health and welfare, to properly heat buildings, where the public either lives or works, in order that the members of the public are not compelled to live and work at low temperatures, and thus become subject to colds, pneumonia, or other similar diseases, is too obvious to require comment. In fact, our courts have already upheld the validity generally of a similar heating ordinance as authorized by the several statutes there cited. Potter v. Weleck , 131 N.J.L. 155 (Sup. Ct. 1944). See also the statutes cited in Newark v. Charles Realty Co., supra. True, the court in the Potter case held such ordinance invalid in part, because of the fact that such part covered buildings "used or occupied," the court there alluding to the fact that under such ordinance "a building used for storage, and not occupied otherwise would require to be heated," this being unreasonable. But, as hereafter appears, the Newark ordinance in question has no such requirement, the Potter decision thus applying directly thereto, that heating ordinances generally are a valid exercise of the police power.
We turn accordingly to the question of whether, despite the fact that heating ordinances are generally valid, this particular ordinance is invalid, because of the claimed unreasonableness and arbitrary character of its particular terms.
So far as pertinent hereto, the ordinance provides "It shall be the duty of every * * * corporation who shall have contracted * * * to heat * * * any building or portion thereof occupied * * * as a business establishment where one or more persons are employed, to heat * * * every occupied room in such building or portion thereof, so [9 NJSuper Page 437] that a minimum temperature of sixty-eight (68) degrees Fahrenheit may be maintained therein at all such times * * *. The term 'at all such times' * * * shall include the time * * * during the usual working hours maintained and established in a building or portion thereof occupied as a business establishment, each day, whenever the outer temperature shall fall below fifty (50) degrees Fahrenheit * * *."*fn1 [9 NJSuper Page 438] The stipulated facts in the three cases show that defendant owns the three premises in question, which it rents out as business establishments where persons were employed, all of such premises adjoining each other, and being a part of the same building or connecting buildings, and heated by the same oil heating plant operated by defendant, under contract to heat all such premises. It is further stipulated that on February 20, 1950, at 10:45 A.M., the temperature in certain of said premises had fallen to 44 degrees, the outside temperature then being 14 degrees; that on February 27, 1950, when the outside temperature was 18 degrees, at about 10 A.M., the inside temperatures in the two premises there alluded to, but adjoining each other, as above, varied in various parts of same from 61 degrees down to 57 degrees. The effect of this lack of heat was that the many employees in each of the premises quit work therein on both days from 8 o'clock in the morning until noontime. It further appears that defendant has no permanent employee to supervise the performance of the oil-burning apparatus, but employs a single general maintenance man to take care of all the premises in question, together with other premises known as 91 Edison Place, Newark, several blocks away. While this employee checks the heating apparatus each day at 7 A.M., if the same is then in good working order, he leaves the premises for the rest of the day. If not in good working order, since he is not an oil-burner mechanic, he notifies the oil-burner service repairman to attend to the apparatus. It is not known, because of such circumstances, when the defendant's oil burning apparatus became defective with the above result, other than that this occurred sometime between 6 P.M., February 19th, and 7 A.M., February 20th, and between 6 P.M., February 26th, and 7 A.M., February 27th. Neither of these conditions were discovered until 7 A.M., February 20th, and 7 A.M., February 27th, with the resultant lack of heat, causing the inability of all the employees in all these plants to work for an entire half day, and this despite the fact that a coal burning furnace existed on the premises for use in such cases.
Defense counsel further admitted that had defendant's general maintenance man made an inspection of the premises but once an hour during the day, or but once early in the morning, several hours before work commenced, any such failure of the oil burning apparatus could have been remedied, in time to obviate any such failure of heat, affecting the many employees in all the premises concerned. Defense counsel further stated that it would have been possible to have obtained prompt notice of any such failure of the heating apparatus almost immediately, and without the use of any such maintenance man or inspector, by the installation of an A.D.T. electrical thermostatic alarm, which would have immediately given an alarm at a central point, whenever the temperature within the premises fell to any danger point.
Defendant's claim that it acted with due care to maintain the heat at 68 degrees, the standard fixed by the ordinance for the working period, thus appears insupportable. But, since both complainant and defendant contend that the ordinance in question is not based on "due care," nor "wilful intent," we proceed to the consideration of defendant's further attack on such ordinance, that because it imposes an obligation regardless of intent, it is so arbitrary and unreasonable as to constitute a taking of property without due process of law.
In the first place, it is well settled that a statute, and likewise an ordinance, may impose an obligation regardless of intent. Halsted v. State , 41 N.J.L. 552 (E. & A. 1879); Vandegrift v. Meihle , 66 N.J.L. 92 (Sup. Ct. 1901); Commonwealth v. Jackson , 345 Pa. 456, 28 A.2d 894 (Sup. Ct. 1942); Department of Health of City of New York v. Sulzberger , 137 N.Y.S. 998 (Sup. Ct. App. Term 1912).
The question thus is whether, since an ordinance may lawfully be so enacted, the terms of this ordinance are so arbitrary in that regard as to invalidate it. In the first place, defense counsel frankly admit that "68 degrees (the standard fixed by the ordinance) is a reasonable standard for public health," i.e. , that the municipality had exercised a fair discretion in this regard, and that such exercise did have a substantial effect
upon the public health. Here indeed the words become apt that "While such regulation may be considered drastic in its operation, the court is not at liberty to substitute its judgment for that of the municipality." Peoples Rapid Transit v. Atlantic City , 105 N.J.L. 286 (Sup. Ct. 1929); affirmed, ...