72 N.J. Eq. 289 | New York Court of Chancery | 1906
The bill in this cause is filed by the attorney-general at the relation of the state board of health, under the provisions of chapter 41 of the laws of 1899 (P. L. 1899 p. 73), to restrain the borough of Vineland from discharging the effluent of the filtration beds of its municipal sewer system into the waters of Tarkiln branch, a tributary of Maurice river.
It is contended upon the part of defendant that the provisions of the act referred to are repealed by subsequent legislation. As the jurisdiction of this court in this case is dependent upon the provisions of that act, which by its terms confers upon this court a special statutory jurisdiction in this class of cases (State, ex rel. Board of Health of New Jersey, v. Diamond Paper Mills, 63 N. J. Eq. (18 Dick.) 111; S. C. on appeal, 64 N. J. Eq. (19 Dick.) 793), it is manifest that if subsequent legislation has operated to effect a repeal of the act in question the bill in thié cause must be dismissed.
The principle upon which subsequent legislation will operate to repeal prior legislation without an express repealing clause has been frequently considered by the courts of this state and is well defined. Where there are two acts on the same subject, the rule is to give effect to both, if possible. If the two acts are
The act under which this proceeding is brought is entitled “An act to secure the purity of public supplies of potable waters in this state,” and was approved March 17th, 1899. The first section of this act forbids any sewage or other polluting matter, which will corrupt or impair or tend to corrupt or impair the quality of the water into which it is discharged, or which will render or tend to render such waters injurious to health, to be placed or discharged into any stream or tributary or branch thereof, from which is taken, or may be taken, any public supply of water for domestic use in any municipality, above the point from which any such municipality shall or may oblain-its supply of water for domestic use. A proviso exempts from the opera
At the same session of the legislature an act was passed entitled “An act to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards, and prescribing, defining and regulating the powers and duties of such commission and such boards.” P. L. 1899 p. 586. This act was approved March 24th, 1899. This latter act was amended in 1900 (P. L. 1900 p. 113) by a re-enactment of the entire act with some minor changes and several important additions. The amendatory act defines the full scope of purpose of the legislature, and any legislative intention to supersede and annul the operation of the act of March 17th, 1899, will be found in this amendatory act. This act retains the state sewerage commission created by and appointed under the act of March 24th, 1899, and increases the salary of its members and removes the limitation upon the annual appropriation to cover the expenditures of the commission. It makes it the duty of the state sewerage commission to investigate the various methods of sewage disposal to enable it to make proper recommendations and to investigate all complaints of pollution of waters which shall be brought to its notice, and if the commission find that
This summary of the provisions of the two acts is deemed to be complete enough to disclose their relative scope and purpose. It will be seen that the purpose of the latter act, as is stated in its title, is to prevent the pollution of the waters of this state by the establishment of a state sewerage commission, and authorizing the creation of sewerage districts and district sewerage boards. With the primary aim to prevent the pollution of the waters of this state the act appears to have adopted, or undertaken the adoption of, a complete and self-sufficient scheme to the accomplishment of that end. In the purposed accomplishment of that end the provisions of the act seem to cover the entire scope and operation of the earlier act. A state sewerage commission is created with broad and comprehensive powers and duties which appear to be not only appropriate but ample to meet and eradicate all conditions which may occasion water pollution within the state. The earlier act is not operative against municipalities with sewer systems which existed at the date of the passage of the act; the later act includes not only a means for their correction, but also a complete means for the prevention of future contamination, existing evils being corrected through the means provided in section 5 of the act, and new pollutions being prevented by the provisions of sections 6, 7 and S. The waters brought under the protection of the later act include all the waters within the contemplation of the earlier act and other waters as well, the earlier act being limited to potable waters. A special statutory jurisdiction is given to this court by the later act to prevent by injunction all violations of the act; this provision is essentially the same as a corresponding provision in the earlier act. The only feature I find in the earlier act which may be said to be in any sense broader than the later act is that the former act forbids pollution (except as to municipalities with sewer systems already constructed) in any event and irrespective of whether or not injury is sustained, whereas the later act guards against pollutions by giving to
The conclusion I have reached renders a discussion of the testimony unnecessary. I may say, however, that the testimony (which was taken before my predecessor in office and transcribed for my use) does not lead me to the conclusion that the fact is satisfactorily established in this cause that the' effluent of defendant’s works corrupts or impairs or tends to corrupt or impair the waters into which it is discharged. The testimony touching this disputed fact is almost wholly that of chemists and bacteriologists. It appears to be accepted as a scientific fact that pathogenic organisms, like typhoid germs, cannot be estimated, but that the recognized method of ascertaining whether or not any pathogenic organisms exist in water is to ascertain by certain recognized bacteriological tests the presence or absence of bacillus coli communis. If coli are found to exist in considerable numbers the conditions are believed to be conducive to the propagation of pathogenic organisms. The coli are, in themselves, harmless, and the number that may safely exist in water is not entirely certain; one thousand coli to the cubic centimeter is believed to disclose a dangerous condition of the water. The testimony in behalf of complainant is that of Dr. Baymond B. Fitz-Bandolph, a chemist and bacteriologist, who made chemical analyses of water taken from the effluent February 20th, 1905, April 24th, 1905, and November, 1905, and a chemical analysis and bacteriological examination of water taken from the effluent January 21st, 1906. This witness pronounces the effluent impure and claims to have discovered the presence of coli in a dangerous degree in the bacteriological examination made of the water taken January 21st, 1906. Four scientific experts who have made numerous examinations of the effluent— some chemical and some bacteriological—testified in behalf of the defence in opposition to the testimony of Dr. Fitz-Bandolph. Some of these witnesses have given a great amount of time to the examination of the effluent at various periods and to personal examinations of the operation of the works. These