Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.
[108 NJSuper Page 350] On October 3, 1968 defendant unilaterally sent bills with increased monthly rates to property owners in Scotch Plains for collecting their garbage and refuse, without applying to and receiving approval of the local board of health. This was in violation of section 6.2 of a Scotch Plains Board of Health ordinance, known as chapter 57-7. For this violation he was convicted and fined $100 in the Scotch Plains Municipal Court. On appeal to the Union County Court, the conviction was affirmed.
The present appeal is from the judgment of the County Court. Defendant contends that (1) section 6.2 of the Scotch Plains Board of Health ordinance is an ultra vires exercise of municipal authority, and (2) section 8.1 of the same ordinance is "doubtful, vague and uncertain and violative of due process of law."
The matter comes before us on a stipulation of facts signed by the attorneys for the respective parties. The stipulation may be summarized as follows:
The Township of Scotch Plains presently has an ordinance which limits to 11 the number of licenses that shall be issued in the township by the township board of health for the collection of garbage. This ordinance is presently being amended to make the number of such licenses unlimited. There is a biennial license fee of $100 for each license. Defendant Pinto is one of the 11 licensed scavengers. The scavengers bill the homeowners directly for the collection service. The ordinance provides that the rate they bill the homeowners must be approved by the board of health.
The making of the complaint and disposition of the matter by $100 fine imposed by the municipal court is conceded.
For the purpose of this appeal, it is stipulated that defendant did send a bill to a customer for residential service at an increased rate, without first having obtained the approval of the board of health. The customer did not pay to defendant the rate increase.
A copy of the ordinance in question was submitted and marked "Exhibit A". Also submitted and marked "Exhibit B" is the proposed amendment to the ordinance.
We consider defendant's first argument that section 6.2 of the ordinance in question is an ultra vires exercise of municipal authority.
Section 6.2 authorizes a change during the license year of the schedule of rates stated in the license application, but it requires the licensee to deliver to the board of health an amended schedule of rates with notice of the date when it is proposed to become effective, said date to be not less than 30 days after delivery of the new schedule. It further provides that "the amended schedule of rates shall not become effective on the effective date until approved by the Board of Health." Further, notice of the change must be delivered by mail or otherwise to each resident of the township then being served by the license holder.
Defendant concedes that the collection and disposal of garbage is intimately associated with the public health and that stringent control is indispensable. He agrees that an ordinance regulating disposition of garbage, not in conflict with any applicable statute or legislative policy and bearing a reasonable relation to safeguarding the public health, is entitled to a presumption of validity. He cites Marangi Bros. v. Bd. of Com'rs of Ridgewood , 33 N.J. Super. 294 (App. Div. 1954). But he maintains that a municipal board of health has not been delegated any power or authority to approve, disapprove, fix or determine the rates to be charged the customer for the collection ...