At the time for the hearing of the appeal, and after oral openings, it was agreed that this appeal would be submitted for decision by the court upon the conclusions and findings set forth in the opinion of Judge Nathan G. Ginsberg of the Municipal Court of Deptford Township, Gloucester County, New Jersey.
The case involves a violation of N.J.S. 23:5-28 which prohibits the pollution of water by allowing deleterious or poisonous substances to enter streams in quantities destructive of life or disturbing the habits of the fish or birds inhabiting the same.
The municipal court judge made the following findings with respect to the cause of the pollution of the stream in question:
"I conclude from the investigation of Officer Young that the probable source of the pollution was defendant's landfill. The landfill contained large quantities of organic matter and the pollution was the most intense in the area closest to the landfill.
Furthermore, the court notes that the piggeries and sewer plant have been in this area for many years, yet no complaint had been made of pollution in the waters for a substantial number of years and the pollution came about only when defendant started his relatively recent landfill operation. The inference is inescapable that defendant was a substantial factor in bringing about the pollution charged in the complaint. I so find.
The state has satisfied the burden imposed upon it as to the source and cause of the pollution.
In the instant case the landfill was a continuing operation and from that continuing operation and by the manner in which it was conducted the pollution of the adjoining waters resulted. It cannot be denied that the defendant approved of or acquiesced in the manner in which the landfill was conducted."
Surely the above findings and conclusions of the Municipal Court Judge indicate that in his opinion the pollution of the stream was caused by the operation of defendant's landfill. However, the court below then entered into a discussion of the holdings in the case of State v. American Alkyd Industries, Inc., 32 N.J. Super 150 (Bergen County Court 1954) and concluded that there could not be a conviction because there was no proof of guilty knowledge. The judge did state, however, that American Alkyd could readily be distinguished from the case sub judice because the facts in the American Alkyd case proved the pollution resulted from an accident by an employee in overflowing an oil tank and not from a continuing course of business or conduct. Nevertheless, the court found defendant not guilty.
We are dealing with the violation of a statute that is not criminal or quasi -criminal. It is civil in nature and the collection of the penalty is enforced by a civil action in which the burden of proof is by the preponderance of the evidence. Department of Conservation & Economic Development, Division of Fish and Game v. Scipio, 88 N.J. Super. 315 (App. Div. 1965), Sawran v. Lennon, 19 N.J. 606 (1955).
Guilty knowledge or mens rea is a definite requirement of any common law crime. However, there are now many statutory offenses where no mens rea is required. The Legislature may dispense with the necessity for any criminal state of mind and punish particular acts without regard to the mental attitude of the defendant. Such legislative acts are usually ...