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Board of Health v. Tandy & Allen Inc.

Decided: December 10, 1953.

BOARD OF HEALTH, BOROUGH OF HILLSDALE, PLAINTIFF-APPELLANT,
v.
TANDY & ALLEN, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND GORDON HALL, DEFENDANTS-RESPONDENTS



Del Mar, J.c.c.

Del Mar

From a judgment of the Municipal Court of the Borough of Hillsdale dismissing 16 complaints against the defendants, the Board of Health of the Borough of Hillsdale has appealed to this court. There is no formal return by the magistrate of said court, but no objection was made to this informality. Defendants moved for a dismissal of the appeal on the ground that this court has no jurisdiction to hear the same on the merits.

From an examination of the opinion rendered by the magistrate and a stipulation of facts signed by the attorneys for all the parties, it appears that the board of health filed 16 complaints charging violation of the provisions of the plumbing code adopted by the said board. The defendants moved to dismiss the complaints on the ground that they were not filed within one year as provided by N.J.S.A. 2 A:14-10(d). These motions were granted. At the hearing of the motions all parties stipulated that there had been no act done by the defendants within a period of one year prior to the filing of any of the complaints which would subject any of the defendants to any liability for any claim asserted, and that the board of health does not assert any violation of the provisions of its plumbing code within one year of the date of filing the complaints. The learned

magistrate held that the aforesaid statute of limitations applied and thereupon dismissed the complaints.

The statute of limitations is a matter of defense and the court has no power to invoke the statute until there has been a hearing on the facts which are the subject matter of the complaint. The stipulation agreed to by counsel, in my judgment, constituted an offer to prove offenses against the defendants occurring more than one year before the filing of the complaints and the magistrate's decision, in effect, was to hold that, assuming such evidence was offered, the judgment must go for the defendants because of his opinion that the aforesaid statute of limitations applied, and that even if the board of health proved the facts which it offered to prove, there could be no conviction. If the proceeding was simply for the purpose of deciding the validity of the complaints, i.e. , whether or not they alleged that the offenses were committed within a period not covered by any statute of limitations, there would not have been any reason for the parties to stipulate any facts. I think the correct form of the judgment should not have been a dismissal of the complaints, but a judgment of acquittal for the defendants. I will accordingly treat it as such.

The matter of appeal is purely statutory. In cases of this class there is not, either by the common law or by virtue of any constitutional provision, any substantive or vested right to an appeal. The meritorious question to be decided by me is whether upon such a judgment of acquittal an appeal would lie to this court. This court, of course, is bound by all applicable decisions of any of the appellate courts. A brief history of proceedings under the health statutes would not be amiss.

Under R.S. 26:3-77, which is the only section of the title, Health & Vital Statistics , referring to an appeal, it was held that there was no appeal to the former Court of Common Pleas. See Bd. of Health of the Twp. of Cranford v. Union County Common Pleas Court , 83 N.J.L. 392 (Sup. Ct. 1912); Holzworth v. Bd. of Health of the City

of Newark , 50 N.J.L. 85 (Sup. Ct. 1887); Bd. of Health of the Borough of East Rutherford v. Lobsenz , 23 N.J. Misc. 293 (Com. Pl. 1945).

The present County Courts succeeded to the jurisdiction of the former Court of Common Pleas and other courts. The Constitution of 1947 also conferred upon the County Court such other jurisdiction consistent with this Constitution as may be conferred by law. It was also provided that the jurisdiction of the County Courts, and of the judges thereof, may be altered by law. N.J. Const. 1947, Art. VI, Sec. IV, paragraphs 1 and 4.

At the time of the adoption of the Constitution of 1947 there were in effect various statutes giving the Court of Common Pleas, or the judges thereof in their different capacities, various powers to hear numerous matters by way of review or de novo. None of these applied to a civil proceeding to recover a penalty for the violation of a local ordinance. See Bd. of Health of the Borough of East Rutherford v. Lobsenz, supra.

In this state of affairs the Legislature enacted N.J.S.A. 2 A:3-6 conferring upon County Courts jurisdiction "to hear, determine and review any judgment in any cause, other than a civil cause, in * * * any municipal court." (I have not quoted the inapplicable proviso.) The appellant seeks to invoke this statute as conferring jurisdiction upon the County Court. However, I do not think that the statute applies because, in my judgment, the proceeding is civil in its nature. See Bd. of Health of the Borough of East Rutherford v. Lobsenz, supra. The appellant, however, contends that the proceeding below was criminal and in this view is joined by the defendants. It is certainly the established law under the present Supreme Court that ...


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