The opinion of the court was delivered by
Knapp, J.
The plaintiffs in error were convicted, on trial before the Quarter Sessions of the county of Hudson, of the offence of maintaining a public nuisance in the said county. Their business was that of extracting fats from dead animals, and converting the rest into fertilizers. It was established by the finding of the jury that the process of manufacturing created nauseous and offensive odors to an extent sufficient to [100]*100create public annoyance. The plaintiffs in error had received a license from the board of health and vital statistics of the county of Hudson to carry on the business of manufacturing fertilizers, and they sought to vindicate their action in virtue-of such license. This line of defence was distinctly presented in a request of the court to charge that “ if the jury believe the board of health and vital statistics established in the-county of Hudson has enacted ordinances on the subject of carrying on the business carried on by the defendants, and under such ordinances has licensed the defendants to cany on the business, this prevents an indictment- for nuisance during the continuance of such license.” This the court declined to-charge, and charged that the fact of the license being granted, did not prevent the indictment of the licensees of the board il they created and maintained a public nuisance. To this refusal of the request to charge, and to the charge as made upon that point, exceptions were duly sealed, and errors were assigned thereon. The action of the court thus excepted to-presents the only questions for consideration here. The board whose licenses the plaintiffs in error set up in their justification was created by an act of the legislature entitled “ An act to provide for a board of health and vital statistics in the-county of Hudson, and to prevent the spreading of disease,”' passed March 27th, 1874. Pamph. L., p. 569. It gave power to the board to enact ordinances in relation to the public health, not inconsistent with the laws of the state, and to impose a penalty for their violation. By that act, power and authority to grant licenses was not conferred, but by a public act, entitled “ An act concerning county boards established for the protection of public health and the registration of vital facts and statistics in the counties of this state,”' passed May 5th, 1884 (Pamph. L., p. 282), such boards were-empowered to regulate and control or prohibit the carrying on of all trades and manufactures in said county, obnoxious or offensive to the inhabitants of such county or any part thereof, and which are attended by noisome or injurious odors (¶ 5, § 4), and to regulate, license and control all deal[101]*101ers in bones, fat and animal offal or refuse whatsoever; also all bone and fat-boiling or grease-making establishments. ¶ 6, § 4. The plaintiffs in error produced, on the trial, a license from the county board of health, to manufacture fertilizers and materials within Hudson county, on Hackensack river, Kearny township, for one year from the 1st day of July, 1884, subject to revocation for cause. This paper lays the foundation of the matters objected to at the trial.
The defendants invoke in their behalf a recognized principle that a public nuisance must be occasioned by acts done in violation of law, and that any business or pursuit which is authorized by law cannot be such nuisance. It is not deriied that the legislature have the power to make lawful, so far as the public is concerned, a work or business which by the common law would otherwise be a public nuisance. An instance of the exercise of this power is found in the schedule of powers usually conferred upon railroad companies, many of which, in their unauthorized exercise, would amount to such public wrong., And it has not been questioned in this case that it is competent for the legislature, through its selected agents, to determine when, where and in what manner such business may be conducted.
Such legislation, however, being in derogation of the common law, must receive strict construction, and the public injury from which one holding such a grant would be protected must be the necessary results of the authorized business after the exercise of proper care, skill and diligence — employing careful servants and using processes least likely to produce detriment to the public. If he fails in any of these, and unnecessary injury results to the public, he becomes liable to indictment. 2 Whart. C. L., § 1424.
In the light of these rules, and assuming that the licenses which the plaintiffs in error held were lawful authority for carrying on the business so licensed, is the proposition contained in their requests to charge one that is supportable in law ? What he asks the court to declare to the jury as a legal rule for their guidance is that the license of this board to [102]*102carry on a particular business is, under any and all circumstances, a protection against an indictment for nuisance growing out of such business. It left no room for the consideration of unnecessary or even reckless injury to the public in the mode of manufacture. This is the plain meaning of this request, and had it been put to the jury as asked, no matter-how willful or extensive the offence to the public may have-been, it demanded, in virtue of the licenses, the acquittal of the plaintiffs in error. The proposition can find no support or countenance in any legal rule. But on looking into the licenses, is there any authority given the plaintiffs in error to-create noisome odors and smells, and corrupt the air with them, to the inconvenience of the public ? The authority is,, by the licenses, to manufacture fertilizers and materials in a. certain locality for one year.
Is it to be assumed that the necessary consequence of such manufacture was to corrupt the air and produce public annoyances ? Are we to infer from this grant that either the legislature or the board acting in their behalf, designed to grant the right under such terms to create what otherwise in law would be a public offence ? Such is not its expression, and on every recognized principle in the interpretation of such grants the-presumption would be against any such intent. The object of the legislation constituting boards of health and marking out. their duties was to prevent nuisances in conservation of the public health. With this purpose as the single object of their-creation and sole guide in action, it would be novel indeed to-find in such words a license to effect a public nuisance. In either of these views the judge was clearly right in refusing to charge as requested. I am also of opinion that the objection to the charge as made is not supportable. It is to be observed that the charge given which was objected to was in, answer to the plaintiff’s request. The judge had, in a former part of the charge, clearly defined a public nuisance. He had instructed the jury that the business of manufacturing fertilizers was a lawful business when the manner of its conduct was not hurtful or offensive. He had declared the law in this-[103]
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The opinion of the court was delivered by
Knapp, J.
The plaintiffs in error were convicted, on trial before the Quarter Sessions of the county of Hudson, of the offence of maintaining a public nuisance in the said county. Their business was that of extracting fats from dead animals, and converting the rest into fertilizers. It was established by the finding of the jury that the process of manufacturing created nauseous and offensive odors to an extent sufficient to [100]*100create public annoyance. The plaintiffs in error had received a license from the board of health and vital statistics of the county of Hudson to carry on the business of manufacturing fertilizers, and they sought to vindicate their action in virtue-of such license. This line of defence was distinctly presented in a request of the court to charge that “ if the jury believe the board of health and vital statistics established in the-county of Hudson has enacted ordinances on the subject of carrying on the business carried on by the defendants, and under such ordinances has licensed the defendants to cany on the business, this prevents an indictment- for nuisance during the continuance of such license.” This the court declined to-charge, and charged that the fact of the license being granted, did not prevent the indictment of the licensees of the board il they created and maintained a public nuisance. To this refusal of the request to charge, and to the charge as made upon that point, exceptions were duly sealed, and errors were assigned thereon. The action of the court thus excepted to-presents the only questions for consideration here. The board whose licenses the plaintiffs in error set up in their justification was created by an act of the legislature entitled “ An act to provide for a board of health and vital statistics in the-county of Hudson, and to prevent the spreading of disease,”' passed March 27th, 1874. Pamph. L., p. 569. It gave power to the board to enact ordinances in relation to the public health, not inconsistent with the laws of the state, and to impose a penalty for their violation. By that act, power and authority to grant licenses was not conferred, but by a public act, entitled “ An act concerning county boards established for the protection of public health and the registration of vital facts and statistics in the counties of this state,”' passed May 5th, 1884 (Pamph. L., p. 282), such boards were-empowered to regulate and control or prohibit the carrying on of all trades and manufactures in said county, obnoxious or offensive to the inhabitants of such county or any part thereof, and which are attended by noisome or injurious odors (¶ 5, § 4), and to regulate, license and control all deal[101]*101ers in bones, fat and animal offal or refuse whatsoever; also all bone and fat-boiling or grease-making establishments. ¶ 6, § 4. The plaintiffs in error produced, on the trial, a license from the county board of health, to manufacture fertilizers and materials within Hudson county, on Hackensack river, Kearny township, for one year from the 1st day of July, 1884, subject to revocation for cause. This paper lays the foundation of the matters objected to at the trial.
The defendants invoke in their behalf a recognized principle that a public nuisance must be occasioned by acts done in violation of law, and that any business or pursuit which is authorized by law cannot be such nuisance. It is not deriied that the legislature have the power to make lawful, so far as the public is concerned, a work or business which by the common law would otherwise be a public nuisance. An instance of the exercise of this power is found in the schedule of powers usually conferred upon railroad companies, many of which, in their unauthorized exercise, would amount to such public wrong., And it has not been questioned in this case that it is competent for the legislature, through its selected agents, to determine when, where and in what manner such business may be conducted.
Such legislation, however, being in derogation of the common law, must receive strict construction, and the public injury from which one holding such a grant would be protected must be the necessary results of the authorized business after the exercise of proper care, skill and diligence — employing careful servants and using processes least likely to produce detriment to the public. If he fails in any of these, and unnecessary injury results to the public, he becomes liable to indictment. 2 Whart. C. L., § 1424.
In the light of these rules, and assuming that the licenses which the plaintiffs in error held were lawful authority for carrying on the business so licensed, is the proposition contained in their requests to charge one that is supportable in law ? What he asks the court to declare to the jury as a legal rule for their guidance is that the license of this board to [102]*102carry on a particular business is, under any and all circumstances, a protection against an indictment for nuisance growing out of such business. It left no room for the consideration of unnecessary or even reckless injury to the public in the mode of manufacture. This is the plain meaning of this request, and had it been put to the jury as asked, no matter-how willful or extensive the offence to the public may have-been, it demanded, in virtue of the licenses, the acquittal of the plaintiffs in error. The proposition can find no support or countenance in any legal rule. But on looking into the licenses, is there any authority given the plaintiffs in error to-create noisome odors and smells, and corrupt the air with them, to the inconvenience of the public ? The authority is,, by the licenses, to manufacture fertilizers and materials in a. certain locality for one year.
Is it to be assumed that the necessary consequence of such manufacture was to corrupt the air and produce public annoyances ? Are we to infer from this grant that either the legislature or the board acting in their behalf, designed to grant the right under such terms to create what otherwise in law would be a public offence ? Such is not its expression, and on every recognized principle in the interpretation of such grants the-presumption would be against any such intent. The object of the legislation constituting boards of health and marking out. their duties was to prevent nuisances in conservation of the public health. With this purpose as the single object of their-creation and sole guide in action, it would be novel indeed to-find in such words a license to effect a public nuisance. In either of these views the judge was clearly right in refusing to charge as requested. I am also of opinion that the objection to the charge as made is not supportable. It is to be observed that the charge given which was objected to was in, answer to the plaintiff’s request. The judge had, in a former part of the charge, clearly defined a public nuisance. He had instructed the jury that the business of manufacturing fertilizers was a lawful business when the manner of its conduct was not hurtful or offensive. He had declared the law in this-[103]*103case to the jury in these words: “ When a lawful business is conducted in an unlawful manner, so that it is injurious and interferes with the rights of those about him, then that offensive method of conducting the business may be abated, and the parties guilty of it may be punished by indictment if it has become a public nuisance.” The plain deduction from what was said in answer to the request is that no inference was to be drawn from the license which, the plaintiffs held, that they were authorized to inflict injury upon the public by their mode of conducting the business and that they were responsible if thereby they created a nuisance to the public. If the language used can be understood as an instruction that these licenses can in no wise impair the common law right of the public to be protected against unwholesome and noxious odors I would still regard it as a correct exposition of the law.
The purpose which the legislature had in view in creating boards of health was to supply additional means to prevent disease and discomfort, such as might arise from contamination of air, water or food. These means were designed to be auxiliary to existing public methods of protection. It was no part of that purpose to legalize or protect any of the sources of such evil.
It is a mistake to ascribe to this legislation a design to grant immunity from the ordinary legal consequences of creating or continuing a public nuisance. Such design is not to be found in the causes which gave rise to these enactments, and no words found in the acts express or suggest a power in the several boards of health to license offences against the public health and comfort. Their powers, large as they are, are granted solely for the repression, not the creation or protection of nuisances. The power to license is given as a means of exercising restraint and control over doubtful pursuits, as to those noxious in nature or becoming so by carelessness. The sole power given, or designed to be given, is to abate and suppress.
Business not unlawful in itself may be brought under control by safe and proper regulations touching modes of con[104]*104ducting such business, to avoid offence to the public. But such boards have not been endowed with power to grant away the public right to pure and uncontaminated air.
If it- be as the plaintiff in error contends, under a class of laws declared to be enacted for the protection of the public health, power has been conferred upon these local agencies, broad enough to permit, through the form of a license, the establishment in the midst of our largest cities, of the most dangerous and intolerable nuisances. This cannot be conceded.
The evidence offered at the trial has been brought here with the return to the writ. We cannot look into this, but must assume that the convictions rest upon competent and sufficient evidence.
We think there was no error in the refusal to charge as requested or the charge as given, and the judgment should be affirmed.