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Zullo v. Board of Health of Township of Woodbridge

Decided: May 12, 1952.


On appeal from the Law Division of the Superior Court.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Vanderbilt, C.J.


[9 NJ Page 434] Pursuant to an ordinance passed by the defendant board of health, the plaintiffs made application for a license for a trailer camp, but their application was denied. They thereupon instituted this proceeding in lieu of a prerogative writ, seeking (1) an order compelling the defendant to issue the license; (2) a review of the resolution of the board denying their application, and a determination

that the resolution was illegal and void; and (3) a determination that the ordinance under which the board purported to act was likewise illegal and void. At the trial before the introduction of any evidence, it appearing that the facts were not in dispute, the court suggested the desirability of having a ruling at the outset on the validity of the ordinance of the defendant board of health which purported to license and regulate trailer camps, prior to determining whether or not the defendant board had acted properly in denying the plaintiffs a license. In accordance with the court's suggestion the plaintiffs made a motion for judgment on the grounds that the ordinance should have been enacted by the governing body of the municipality rather than by the defendant board of health and that the ordinance improperly gave the board untrammeled discretion in respect to licenses for a trailer camp. The motion was granted and judgment was accordingly entered in favor of the plaintiffs, setting aside the resolution of the board denying the plaintiffs' application and invalidating the ordinance passed by the defendant board. From this judgment the defendant appealed to the Appellate Division of the Superior Court and we have certified the appeal on our own motion.

Local boards of health are governmental agencies created in every municipality under statutory mandate, R.S. 26:3-1, for the purpose of exercising locally the inherent police powers of the State with respect to matters pertaining to public health. Their powers in this respect are broad and the general grant thereof is to be found in R.S. 26:3-64 and chapter 177, Laws of 1947 (N.J.S.A. 26:1 A -9). The enumeration of the specific powers and duties of local boards of health to be found in R.S. 26:3-31, as amended by chapter 211, Laws of 1946 (N.J.S.A. 26:3-31), has been held not to be a limitation upon the general powers of such boards, and there is no more reason to consider that the numerous other express grants of particular powers to be found in a number of statutory provisions impose limitations on their general powers. In Bd. of Health of Weehawken Tp. v.

N.Y. Central R. Co., 4 N.J. 293, 298-300 (1950), this court stated:

"The function of these agencies [local boards of health] 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 [to regulate and control air pollution by barring excessive emission of dense smoke] 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. 26:1 A -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 * * *. The cited act of 1947 is affirmative legislative acquiescence in the judicial finding of the general power in the pre-existing statutes.

The local boards of health in the exertion of the authority thus conferred exercise, not an administrative function, but rather a portion of the police power to serve the public health. They are 'governmental agencies by which the police law of the state is locally exerted' * * *."

Trailer camps, because of their particular nature and relation to the public health, safety, morals and general welfare, have frequently been the subject of special regulation by appropriate local governing bodies, see Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17 (1949); Michaels v. Tp. Committee of the Tp. of Pemberton, 3 N.J. Super. 523 (1949); Annotation, 22 A.L.R. 2 d 774-802 (1952). We have no hesitancy in stating that they are the fit subject and a proper class to be subject to special regulation by local boards of health in matters pertaining to or affecting health. In this regard we are not unaware of R.S. 40:52-1, as amended by chapter 425, Laws of 1948 (N.J.S.A. 40:52-1), to the effect that:

"The governing body [of a municipality] may make, amend, repeal and enforce ordinances to license and regulate:

d. Hotels, boarding houses, lodging and rooming houses, trailer camps and camp sites, and all other places and buildings used for sleeping and lodging purposes, restaurants and all other ...

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