For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The defendant John Pinto was convicted in municipal court of violating an ordinance of the Board of Health of the Township of Scotch Plains by increasing the rates of his garbage collection services without first obtaining approval of the Board. He was fined $100. The conviction was affirmed by the Union County Court and by the Appellate Division. 108 N.J. Super. 349 (1970). We granted defendant's petition for certification. 55 N.J. 597 (1970).
The facts are not disputed. The defendant is one of eleven licensed refuse collectors operating in the Township. The licenses were issued by the Board of Health which also approves rates at which collectors may bill individual homeowners. Defendant admits that he increased the charge for his services above the rates approved by the Board without first obtaining its approval and that his conduct violated the Board's ordinance. He has limited his defense to the question of the validity of the ordinance which he attacks on numerous grounds.
The critical sections of the ordinance require that refuse collectors be licensed by the Board, that the collectors file rates to be approved by the Board, that the rates cannot be increased without prior approval of the Board, and that any licensee who violates any provision of the ordinance shall be subject to a fine not exceeding $100. Other sections provide that there shall be no more than eleven licenses outstanding except in cases of emergency, that there shall be a biennial license fee of $100, that each licensee deposit a $1,000 bond to insure conformance with Board regulations, and that all licenses are subject to suspension and revocation for violation of Board regulations.
Defendant's primary argument is that the challenged provisions of the ordinance are ultra vires in that there is no statutory authority for the Board of Health to license and fix rates for the collection and disposal of refuse. In order to resolve this question, it is necessary to understand the
functions of local boards of health, and to decide whether the powers to license and fix rates are included in the powers delegated to them by the State.
Local boards of health are governmental agencies created in every municipality under statutory mandate, N.J.S.A. 26:3-1 et seq., for the purpose of exercising locally the inherent police powers of the State respecting matters of public health. The boards are invested with both general and specific powers for dealing with problems of public health. N.J.S.A. 26:3-64 grants local boards the general power to "* * * enact and amend health ordinances, and make and alter necessary rules and regulations in the execution of any power delegated to it or in the performance of any duty imposed upon it by law * * *." See also N.J.S.A. 26:1A-9. N.J.S.A. 26:3-31 enumerates the specific powers delegated to local boards. Among the powers granted are two which are pertinent here:
"f. To regulate, control, and prohibit the accumulation of offal and any decaying or vegetable substance.
"h. To regulate, control, or prohibit * * * the dumping of garbage * * *."
The Board argues that the power to license collectors and fix collection rates are incidental to the specific powers granted in subsections (f) and (h). The argument requires an examination of the legislative scheme for allotting the various powers incident to the regulation of refuse collection.
The power to license and regulate rates inheres solely in the State and, in the absence of a statutory grant, does not exist in a municipal corporation or its local board of health. Zullo v. Board of Health, Woodbridge Tp., 9 N.J. 431, 437 (1952); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 21 (1949). Thus, in order to sustain the ordinance before us, we must find ...