Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
This is an appeal by the Department of Health from a judgment of the Superior Court, Chancery Division, which stated that it found the defendants "not guilty of * * * civil contempt" of a prior consent injunction which had directed the defendants to "cease violating the New Jersey Air Pollution Control Code, as promulgated and adopted by the Air Pollution Control Commission."
Pursuant to section 8 of the Air Pollution Control Act (N.J.S.A. 26:2 C -1 to 23), the Air Pollution Control
Commission duly promulgated the Air Pollution Control Code. Chapter II of said Code provides:
"1.1 No person shall cause, suffer, allow or permit open burning of refuse * * *."
Chapter I, section 1.1, defines refuse as including garbage, rubbish and trade waste, and section 1.6 defines open burning as "any fire wherein the products of combustion are emitted into the open air and are not directed thereto through a stack or chimney." N.J.S.A. 26:2 C -19 empowers the Department of Health to seek an injunction enjoining "any further violation of such code, rule or regulation."
Defendants have long been in conflict with the interdictions of the Code. Apparently the "conference, conciliation and persuasion" required by section 14 of the act failed, for the Department instituted the administrative proceedings required by sections 15 to 17 of the act and, after a hearing, the Department on November 26, 1957 ordered the defendants (under section 18) to "take such action as may be necessary to prevent violation of Section 1.1, Chapter II, of the New Jersey Air Pollution Control Code and * * * cease violation of said Code * * * on or before March 1, 1958."
The fires continued, so on December 3, 1958 the Department instituted action in the Superior Court for an injunction "[d]irecting said defendants * * * to cease * * * violating the Order of the State Commissioner of Health, dated November 26, 1957, and the New Jersey Air Pollution Control Code," and for the $100-per-week penalty provided by section 19 of the act. On January 26, 1959 defendants consented to a judgment which enjoined them to "cease violating the New Jersey Air Pollution Control Code." The demand for the $100-per-week penalty was not mentioned in the judgment.
On March 5, April 30, May 14, July 6, September 11 and September 18, 1959 representatives of the Department observed smoke or fires on defendants' dump. Conversations
with defendants having proved fruitless, the Department moved for an order:
"* * * (1) Holding the defendants in contempt for failure to comply with the Judgment of this Court entered ...