On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Botter, Polow and Brody. The opinion of the court was delivered by Brody, J.A.D.
Defendant appeals its conviction under an ordinance*fn1 for polluting the air of South Amboy. A $500 fine was imposed. It contends that the ordinance definition of "air pollution" is unconstitutionally vague and that the penalty provision of the ordinance is void because it establishes a minimum fine contrary to the limited statutory authority given municipalities to adopt penal ordinances. We affirm the conviction.
The facts are not now disputed. Defendant was using an unenclosed conveyor to transfer coal from a railroad coal car to
an open area in its yard. The operation generated a cloud of coal dust which settled on the neighborhood. Some of the dust was collected in a bag and received in evidence.
Defendant was charged with violating that section of the ordinance prohibiting any person from causing substances "to be emitted into the open air . . . in such quantities as shall result in air pollution." "Air pollution" is defined in the ordinance as follows:
The presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, to animal or plant life, or to property, or would unreasonably interfere with the enjoyment of life or property throughout the City as shall be affected thereby, and excludes all aspects of employer-employee relationship as to health and safety hazards.
Virtually the same definition appears in N.J.S.A. 26:2C-2 of the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq.*fn2 The predecessor of N.J.S.A. 26:2C-2 (which was no more specific than the current version) was considered by this court "a sufficient guide and standard" to inform the public as to what conduct "would be considered proscribed activity." State v. Owens-Corning Fiberglas Corp., 100 N.J. Super. 366, 383-385 (App.Div.1968), aff'd o.b. 53 N.J. 248 (1969). Furthermore, the record shows that harm from the airborne and settled particles of coal dust was direct and palpable unlike the uncertain harm from smoke emissions which depends in part on their density.*fn3
Defendant's second point is more troublesome. The penalty provision of the ordinance (§ 10.1) reads:
Any person who shall violate any of the provisions of this Code, or who shall fail to comply therewith or with any of the requirements thereof, shall be punishable by a fine of no more than $500.00, nor less than $5.00.
Our courts have consistently held that N.J.S.A. 40:49-5*fn4 prohibits municipalities from enacting minimum fines which would deprive judges of their statutory discretion to impose "any fine." State v. Hatco Chemical Co., 96 N.J. Super. 238, 240-242, (App.Div.1967); Studerus Oil Co., Inc. v. Jersey City, 128 N.J.L. 286, 292 (Sup.Ct.1942); Pfister Chemical Co., Inc. v. Romano, 15 N.J.Misc. 71, 72, 188 A. 727, 728 (Sup.Ct.1937); see Massinger v. Millville, 63 N.J.L. 123, 126 (Sup.Ct.1899). Defendant argues that since the $5 minimum fine is invalid, ...