75 N.J.L. 910 | N.J. | 1908
The opinion of the court was delivered by
The plaintiff in error was convicted, under an ordinance of Atlantic City, of being “the manager of an ice plant within the limits of Atlantic City, to which was attached a smokestack connected with a furnace, which smokestack, on the clay and days aforesaid, emitted dense smoke, which contained soot in sufficient quantity to permit the deposit of such soot on a surface within the limits of Atlantic City as set forth in the complaint.”
The proceedings and conviction were removed to the Supreme Court by ceriioram, where the judgment was affirmed, and the judgment of the Supreme Court is now here for review.
The reasons filed in the court below to which the attention of this court was directed are as follows:
Second. That the city has no power to adjudge as a nuisance the emission of smoke, and therefore the ordinance was unreasonable and void. The emission of smoke alone is not what the ordinance is aimed at, but of smoke containing soot
Third. That the ordinance is unconstitutional because it deprives the defendant of his property without due process of law. Laws and ordinances relating to the comfort, health and good government of the inhabitants of a city are ordinarily described as “police regulations,” and, though they may disturb the full enjoyment of a personal right, are constitutional, notwithstanding they do not provide compensation therefor, for they do not appropriate private property for public use, but merely regulate its enjoyment by the owner, who is supposed to be compensated by sharing in the benefits which such regulations are intended to secure. He holds his property subject to the restriction that he must so use it as not to injure another, and an ordinance which so controls his use of it that it shall not prove injurious to his neighbor, or the inhabitants generally of the municipality, is not a taking of his property without compensation.
Fourth. That the complaint does not show that the prosecutor had any control over the plant or building. The ordinance is directed against the owner, agent, manager, lessee or occupant of any building, &c. The complaint charges that the prosecutor was the owner and manager of the building. This, we think, is sufficient to charge that he had the control of the building. An allegation of ownership and management clearly implies control.
Fifth. That the conviction does not show that the prosecutor had any control over the building, and that there was no finding of fact that the soot was deposited on any surface
The judgment of the Supreme Court will be affirmed.
For affirmance — Ti-ie Ci-iiee Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill, J.J. 14.
For reversal — None.