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Town of Nutley v. Forney

Decided: October 14, 1971.


Kapp, J.c.c.


James Forney was tried and convicted in the Nutley Municipal Court on March 24, 1971 for violating section 7-C of an ordinance entitled, "An Ordinance [No. 961] to Regulate the Licensing of Dogs, to Regulate and Prevent the Running at Large of Dogs, and to Authorize the Destruction of Dogs Running at Large," and the amendments and supplements thereto, which, in pertinent part, provide that:

No person owning, harboring, keeping, or in charge of any dog shall cause, suffer, or allow such dog to soil, defile, defecate on or commit any nuisance on any common thoroughfare, sidewalk, passageway, bypath, play area, park, or any place where people congregate or walk, or upon any public property whatsoever, or upon any private property without the permission of the owner of said property. The restriction in this section shall not apply to that portion of the street lying between the curb lines, which shall be used to curb such dog under the following conditions:

(1) The person who so curbs such dog shall immediately remove feces deposited by such dog by any sanitary method approved by the local Health Authority.

(2) The feces removed from the aforementioned designated area shall be disposed of by the person owning, harboring, keeping, or in charge of any dog curbed in accordance with the provisions of this Ordinance, in a sanitary manner approved by the local Health Authority.

He was sentenced to pay a fine of $10, and now appeals pursuant to R. 3:23.

The facts are these: Frank Plinio, a citizen who resides at 204 Walnut Street, Nutley, complained that on March 19, 1971 at 6:35 P.M. he saw Forney in front of 203 Walnut Street with a large Great Dane dog. He observed the dog squat and defecate in the street, about one foot from the curb. When Forney failed to pick up the excrement he called out to defendant that he was in violation of the ordinance, whereupon defendant remarked, "What are you worried about, I'm not doing it on your lawn." Defendant then left the area with the dog without removing the dung, which an officer, who responded to the scene, described as "a large deposit" and who opined that it was the dropping of a large dog.

Defendant here contends that section 7-C, supra , offends the equal protection clauses of our Federal and State Constitutions since it contains an unreasonable classification in singling out dogs for this type of regulation, and that it is unrelated in any substantial degree to the health, safety and welfare of the community and its inhabitants. Defendant further alleges that the ordinance fails to provide an adequate standard for the enabling means of disposition of the excrement.

A dog is not a nuisance per se. Smith v. Costello , 77 Idaho 205, 290 P. 2d 742 (Sup. Ct. 1955), citing 39 Am. Jur. 347, § 65; 66 C.J.S. Nuisances § 32, at 785. But it has also been of the essence of civilized society, where many individuals live as neighbors, for each to exercise his rights with due regard to the rights of all -- sic utere tuo ut alienum non laedas. Under such circumstances, this limitation of one's rights, if necessary to protect the rights of all, is not to be adjudged a taking of property without due process of law but, on the contrary, if properly carried out, it is but the use of due process of law for the protection of the rights of all. Mansfield & Swett, Inc. v. West Orange , 120 N.J.L. 145 (Sup. Ct. 1938); Annett v. Salsberg , 135 N.J.L. 122

(Sup. Ct. 1947); Mugler v. Kansas , 123 U.S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (Sup. Ct. 1887); Hudson County Water Co. v. McCarter , 209 U.S. 349, 28 S. Ct. 529, 52 L. Ed. 828 (Sup. Ct. 1908).

So it is held, in 62 C.J.S. Municipal Corporations § 218, at 402, that

The right to the possession of dogs in a municipal corporation is subject to the limitation that such possession must not interfere with the health, security, and comfort of the other inhabitants of the corporation. It has generally been held that such possession may be subject to regulation by municipal corporations. The keeping of dogs is subject not only to many general ordinances against animals, but has also been made the subject of many special regulations.

Is this ordinance within the competency of the municipality to enact? In recent years there has been an unprecedented recognition and awareness that arises from the abuse of natural resources of air, water and land; "environment" has become a popular catchword. What had heretofore been the battle against the polluters is now an avowed endeavor to reverse the environmental deterioration and to improve the quality of our environment.*fn1 The environment is comprehensive and complex; it is the air we breathe, the water we drink, the noise we hear, the buildings, trees, flowers, oceans, lakes, rivers, the open spaces we view and through which we move, and the vehicles that transport us.

There was a time when dog owners loved their animals as pets,*fn2 but today we find that such large dogs are being [116 NJSuper Page 572] employed extensively for security purposes as well, because of the alarming increase in crimes of violence. The tons of solid waste and urine that are daily deposited by dogs*fn3 have undeniably fouled our streets, our walks and parks to the extent that it has become well-nigh intolerable, threatening the health and safety of our citizens.*fn4 The admixture of excrement with other litter, in and about our public walks and highways, has desecrated the landscape and has incited numerous environmental groups to press for corrective measures to ban this form of erosion, via the legislative halls throughout the country.*fn5 Dog droppings have become a scourge, a form of environmental pollution, no less dangerous and degrading than the poisons that we exude and dump into our air and water. Persons stepping into dog feces on sidewalks or in streets while crossing, or when entering or alighting from automobiles, can easily carry it on their shoes, and thence into their homes. Infants crawling about a rug ...

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