On appeal from the Municipal Court of the Township of Weehawken.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
On October 23, 1951, the Board of Health of the Township of Weehawken caused 19 separate complaints to be filed in
the municipal court of the township charging the New York Central Railroad Company with violations of its ordinance to regulate and control air pollution. Four of the complaints charged a violation of section 2 of the ordinance and 15 of the complaints a violation of both sections 2 and 5 of the ordinance. These sections provide as follows:
"Section 2. Emission of Dense Smoke Prohibited. It shall be unlawful for any person, firm or corporation to permit or cause the emission of any smoke from any source whatever of a density equal to or greater than that density described as No. 2 on the Ringlemann chart published by the United States Bureau of Mines, the standards of which are hereby fully adopted by the enactment of this ordinance and set forth in Section 10 herein. The emission of such dense smoke is declared to be a public nuisance and may be summarily abated by the Board, or by anyone whom it may designate for such purpose, provided, however, that this section shall not be applicable to the circumstances set forth in Section 3 herein."
"Section 5. Smoke, etc. Resulting from Negligence. It shall be unlawful for any person, firm or corporation to permit or cause, as a result of his, her, or its negligence, the escape of dense smoke or of such quantities of soot, cinders, noxious acids, fumes and gases in such place or manner as to be detrimental to any person or to the public or to endanger the health, comfort or safety of any such person or of the public or in such manner as to cause or have a tendency to cause injury or damage to property or business."
On December 5, 1951, trials were had on two of the complaints each of which charged violations of both sections 2 and 5. At the trial on the first of these complaints two of the defendant's employees were subpoenaed to testify, but they refused so to do and on December 19, 1951 they were held in contempt of court and fined $200 each. Appeals from these contempt convictions were taken to the Appellate Division of the Superior Court pursuant to R.S. 2:15-3 (now N.J.S. 2 A:10-3; see also Rule 1:2-18 A and Rule 4:2-6). These appeals were certified by this court and are affirmed in the companion decision, 10 N.J. 284.
Following the entry of the contempt judgments above mentioned, the municipal court proceeded on December 19, 1951 to enter judgment fining the defendant $100 on the first complaint and on January 4, 1952 entered a similar judgment
against the defendant on the second complaint. The defendant moved to set aside the judgment of January 4, 1952, but the motion was denied. From the judgments of conviction on these two complaints the defendant appealed to the Hudson County Court and from the order denying its motion for a new trial it appealed to the Appellate Division of the Superior Court. These three appeals are presently pending in the courts referred to and are not now before us.
On January 9, 1952 the defendant moved to dismiss the 17 remaining complaints on the ground that the court had "no jurisdiction over the subject matter, or over the person of the defendant, for the reason that said ordinance and the statutes authorizing the enactment of said ordinance are unconstitutional, in that said ordinance and statutes violate the provisions of Art. I, par. 8; Art. I, par. 9, and Art. I, par. 10 of the Constitution of 1947." The motion was denied by the municipal court and the defendant filed a notice of appeal to the Appellate Division of the Superior Court, stating therein that the appeal was pursuant to Rule 4:2-2(a) (3). Subsequently, on January 16, 1952, trials were had on the 17 complaints and, the defendant not appearing, judgment against it in the sum of $100 was entered on each complaint. On our own motion we certified here the appeal from the order of the municipal court denying the defendant's motion to dismiss the 17 complaints.
While the point is not raised by the respondent, we cannot ignore the procedural infirmities on this appeal. In State v. Yaccarino, 3 N.J. 291 (1949), we held that "procedurally at least and within the intendment of Rule 2:11 a prosecution for violation of an ordinance is essentially criminal in nature." Rule 2:11 provides in part:
"The only method of reviewing a judgment or order in a criminal cause or proceeding in an inferior court of limited criminal jurisdiction, other than a Criminal Judicial District Court, shall be by appeal as herein provided.
(a) Appeals. How Taken. Appeals from judgments of conviction in the inferior courts of limited criminal ...