Freund, Stanton and Conlon. Freund, J.s.c. (temporarily assigned).
The Town of Kearny appeals from an order of the State Commissioner of Health, Daniel Bergsma, embodied in a letter dated January 21, 1952. The letter addressed to the Mayor and Council of Kearny states, inter alia:
"Take Notice, that in conformity with the applicable provisions of R.S. 58:12, the State Department of Health of the State of New Jersey hereby ORDERS that the Town of Kearny, in the County of Hudson and State of New Jersey, must and shall, prior to March 1,
1952, submit to the said State Department of Health a specific and satisfactory program for making improvements to its sewage treatment plant and sewage collecting facilities and must and shall, prior to May 1, 1952, cease the discharge of improperly, insufficiently and inadequately treated domestic sewage or other polluting matter into the waters of the Hackensack River or its tributaries and make such disposition of its domestic sewage or other polluting matter as shall be approved by the State Department of Health of the State of New Jersey."
The appellant, by its attorney, acknowledged receipt of the letter, stating: "In view of the fact that your order was arrived at without a hearing at which the Town of Kearny could examine the evidence, interrogate witnesses and present evidence of its own, I respectfully request that you set aside your order and grant the Town a hearing. * * *" The respondent replied, "* * * the order against the Town of Kearny will not be revoked, it stands on law. If, however, the Town requests a hearing upon the order such request will be granted." In reply the appellant interpreted that letter "as a denial of my application for a rehearing on the merits and for a finding of facts."
The appellant argues that: (1) the order was improper because it was issued without affording an opportunity to be heard and failed to make a finding of facts, and (2) the time for performance set by the Department renders the order arbitrary, unreasonable and impossible to perform.
The pertinent provisions of the statute, R.S. 58:12-2, under which the department acted, are as follows:
"The State Department of Health * * * shall investigate the various methods of sewage disposal in order that it may be able to make proper recommendations in regard thereto, shall require alterations, additions or improvements to sewage treatment works, * * *.
If the department finds that any of said waters are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this State either in their health, comfort or property, or that any sewage treatment works are inadequate in capacity or unit design to properly care for, treat and dispose of sewage before an effluent from such works is discharged into any of said waters, it shall notify in writing any person, corporation or municipality found to be polluting said waters * * * that prior to a time to be fixed
by the department, which time shall not be later than five years from the date of the notice, the person, corporation or municipality polluting said waters must cease such polluting and make such disposition of its sewage and other polluting matter as shall be approved by the department, * * *.
Any person, corporation or municipality aggrieved by the finding of the department may appeal therefrom to the Court of Chancery at any time within three months after being notified thereof, and said court may hear and determine such appeal in a summary manner according to the course and practice of the court in other cases, and thereupon may affirm the finding of the department or reverse or modify the finding in whole or in part as the court shall deem just and reasonable."
The appellant's sewer system was constructed in 1924 before the department's adoption in 1936 of what is termed its "treatment policy for the Hackensack River." From the record, it appears that as far back as 1945 the town authorized a survey of the sewerage system with a view to improving the same. Subsequently, an application was made and permit granted for the construction of a new plant. There appears to have been much correspondence between the town and the department, but without any constructive action by the town. The department, on February 27, 1951, called attention to the tolerance it had exhibited and asked for a specific construction program. The town thereupon requested a six months' extension of the building permit, which under date of March 19, 1951 was granted by the department, but with the suggestion that a contract be awarded ...