On appeal from Union County Court, Law Division.
For affirmance -- Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Case and Oliphant. The opinion of the court was delivered by Burling, J.
[8 NJ Page 362] This is an appeal by the Mundet Cork Corporation, a New Jersey corporation, defendant, from a judgment of conviction entered against it in the Union County Court upon a complaint charging it with violation of an air pollutant ordinance of the plaintiff, the Township of Hillside, a municipal corporation of this State. The appeal was addressed to the Superior Court, Appellate Division; prior to hearing there certification of the appeal to this court was granted on our own motion.
The defendant processes raw cork in the manufacture of cork board insulation, cork gaskets and similar products, a business which it has been conducting at its plant in Hillside since 1918. About 60 per cent of the output of the plant consists of products made from cork board which is the end result of a steam baking process. This process is described as one wherein quantities of ground cork are placed in metal containers or moulds, baking chambers, then compressed and subjected to contact with superheated steam, which, as it passes through the cork, causes the particles to become fused or sealed together. The steam is then drawn off through a water wash and passed into the air outside the plant through a gooseneck stack.
On August 28, 1929, the township committee of the plaintiff passed an ordinance entitled "An Ordinance Regulating the Emission of Smoke from Chimneys of Buildings (Boilers, Engines, etc.) within the Township of Hillside" which prohibited "the emission of dense smoke from any smokestack or chimney connected with any stationary engine, steam boiler, locomotive * * * or other similar machine, or from any smokestack or chimney of any * * * establishment, or private residence using oil burners, or any building used as a factory, or for any purpose of trade, or from any tar kettle, or other machine, furnace or contrivance within the corporate limits of the Township of Hillside, which smoke contains soot or other substance in sufficient quantities to permit the deposit of such soot or other substance on any surface within the limits of said Township." An ordinance adopted on July 22, 1931, amended sections 1 and 2 of the ordinance. The pertinent section 1(b) of the amended ordinance contains the following language:
"(b) the production or emission within the Township of Hillside of smoke, fly ash or fumes, the density or shade of which is equal to or greater than No. 2 of the Ringelman Smoke Chart, as published by the United States Bureau of Mines, or which is so dense as to be dimly seen through at the point of emission into the external air from any stack or open fire, except that of a locomotive for a period
or for periods aggregating twelve minutes or more in any period of one hour, * * * is hereby prohibited." (Emphasis supplied.)
Section 2 of the amended ordinance contains the following pertinent language:
"* * * any owner or manager of any locomotive engine, steam roller, steam derrick or tar kettle, or other machine, furnace or contrivance within the limits of the Township of Hillside who permits or allows to be emitted from any such chimney or smokestack, locomotive, engine, steam roller, steam derrick, tar kettle or other machine, furnace or contrivance, or private residence using oil burners, smoke, fly ash or fumes in violation of Section 1 of this ordinance shall, upon receipt of notice in writing duly served upon him or them by the Smoke Inspector, without delay, file a plan or statement of proposed alterations to remedy the cause of such violation, and shall, within thirty days after the receipt of such notice, entirely eliminate said smoke, fly ash or fumes, as violate this ordinance, and upon failure so to do, upon conviction thereof in a court of competent jurisdiction, be fined not more than One Hundred Dollars ($100.00) * * *."
The defendant was charged with a violation of section 1(b) and non-compliance with section 2 of the foregoing ordinance (as amended) by complaint in writing dated August 31, 1950. Judgment of conviction was entered against it in the Municipal Court of the Township of Hillside on October 7, 1950. The defendant appealed to the Union County Court. The appeal resulted in a trial de novo to the Union County Court, Law Division, without a jury; the judgment of conviction of the defendant by that court was filed on June 14, 1951, and the defendant appealed.
The appeal presents several questions, including construction of the ordinance aforementioned, proof of violation thereof, and constitutional rights of the defendant.
We consider first the question of construction of the ordinance. The premise of the defendant is that the ordinance is ambiguous and must be construed to exclude the vaporous emanation, exhaust steam from the cork baking process, expelled into the atmosphere from defendant's stack. This question must be resolved against the defendant. [8 NJ Page 365] The emphasis in this type of ordinance for centuries has been placed on smoke regulation. (In response to a petition by the citizens of London, a royal proclamation was issued by Edward I in England in 1306 to prohibit artificers from using sea coal, as distinguished from charcoal, in their furnaces, and making use of sea coal a capital offense. See Prentice on Police Powers, p. 35 (1894)). In more recent generations other air pollutants have been subjected to control. See Regulation of Smoke and Air Pollution in Pennsylvania, 10 U. Pitt. L. Rev. 493 (1948-1949). Ordinances designed to regulate and control air pollution in the interest of the public health and welfare have been held valid and enforceable in this State. Bd. of Health of Weehawken Twp. v. N.Y. Central R. Co., 4 N.J. 293, 298 (1950). With this general background in mind we turn to examination of the meaning of the ordinance now before us. The defendant relies upon four rules of construction: that judicial construction of ordinances is governed by the same rules as judicial construction of statutes; that where an ordinance is ambiguous reference may be had to its title to determine the legislative intent of the enacting body; that penal ordinances are to be strictly construed; and that the doctrine of ejusdem generis is pertinent and if applied would confine the meaning of the terms used in the amended ordinance ("smoke, fly ash, or fumes") to emissions caused by combustion. We are of the opinion that the foregoing terms of the ordinance in question are not ambiguous and therefore the rules of construction adverted to by the defendant are not appropriate. A penal ordinance ...