Coxon v. Inhabitants of Trenton

78 N.J.L. 26 | N.J. | 1909

The opinion of the court was delivered by

Garrison, J.

A unanimous vote of all of the members of the board of health is not required by the statute, but only that the “resolution he unanimously adopted by the said board of health.” Granted, therefore, a hoard of health legally constituted and the adoption of the resolution, all present voting and none dissenting, and the statute has been complied with. This distinction is pointed out by Mr. Justice Fort in Crickenberger v. Westfield, 42 Vroom 467.

The other reason urged for vacating the ordinance is good. The owners of property who, by filing their objections under the statute, had held up the action of city council, should have had notice and an opportunity to appear before the board of health when that tribunal had under consideration the question of fact upon the determination of which the controversy between the city and the property owners depended. Even the written objections that had been filed before council do not appear to have been referred to or considered by the board of health. In'view of the legislative scheme and the situation of the contending parties the action of the board of health was distinctly judicial in character, i. e., it was the decision of a question of fact affecting directly and financially a known class of citizens; it was not the adoption of a general scheme of legislation. The effect of the determination by the board of health was to settle an existing controversy, the result of which was to impose a special burden upon one of the contesting parties, i. e., the landowners. The case indeed goes beyond that of Sears v. Atlantic City, 44 Vroom 710, in that here two clearly-defined parties were lined up on a well-defined issue made by written objections filed as part of this statutory proceeding. The opinion that settles such a controversy must, in our judgment, be upon notice to the objectors. By the very act of availing themselves of the statutory right to object the objectors acquired a status that entitled them to notice just as by filing remonstrances to the granting of a license thé remonstrants acquire a status that entitles them to sue out a writ of certiorari.

The ordinance brought up this writ, being based upon a certified opinion of the board of health that was itself improperly given, must be set aside.'