There Is Power Lincoln Brewster Mp3 Download
Jenniffer Trotter
R.S. 40:55-47, as amended in 1949, empowers the local governing body or board of public works to provide by ordinance for the enforcement of the zoning act and of any ordinance or regulation made thereunder. Pamph. L. 1949, ch. 242, p. 779. It is further provided that in case any building or structure is erected, constructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of the zoning statute, or of any ordinance or other regulation made pursuant thereto, the local authority, "in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful" structure or use, "to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises." The earlier legislation was enacted pursuant to Article IV, Section VI, paragraph 5 of the Constitution of 1844, added by the amendment effective October 18, 1927; the amendment of the statute in 1949 was designed to conform the legislation to the revision of the constitutional provision made by Article IV, Section VI, paragraph 2 of the *49 Constitution of 1947 to include within the terms of the grant "the nature and extent of the uses of land."
At common law, a public nuisance is a criminal offense, defined as "an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects." Stephen's Digest of Criminal Law (art. 255, 7th ed.). Blackstone defines nuisance thus: "Nuisance, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience or damage." Public or common nuisances "are an annoyance to all the king's subjects," and are therefore classed "as public wrongs, or crimes and misdemeanors." Common nuisances are a species of offenses against "the public order and economical regimen of the state; being either the doing *50 of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires." Common nuisances "are such inconvenient or troublesome offenses as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-subjects." 3 Blackstone's Com. p. 216; 4 Ibid. p. 167. See State v. Rodgers, 91 N.J.L. 212 (E. & A. 1917); Board of Health of Weehawken Twp. v. New York Central Railroad Co., 4 N.J. 293 (1950). But the Legislature may enlarge the category. There can be no doubt of the power of the lawgiver to classify and define public nuisances, and thus to modify the common-law classification. Apropos of this, Justice Holmes said: "It is settled that, within constitutional limits not exactly determined, the Legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property." Commonwealth v. Parks, 155 Mass. 531, 30 N.E. 174 (1892). Anything that unduly interferes with the exercise of the common right may be declared a nuisance and rendered abateable as such and otherwise remediable. But criminal sanctions may not be arbitrarily extended into the sphere of purely civil obligations. See Salmond on Torts 219 n.
The statute here does not in terms denominate a nuisance the violations of the zoning ordinance made the subject matter of the complaint, although it empowers the local authority to enforce the zoning statute and any regulation made thereunder and, to that end, to institute "any appropriate action or proceedings" to prevent and abate "unlawful" structures and uses. Violations of the zoning act or of local ordinances adopted in the exercise of the power are not made criminal offenses eo nomine; and penal statutes are on well-settled principles to be strictly construed, although the *51 clear implication and intendment of such a statute is not for that reason to be denied.
Yet if the transgressions alleged in the complaint be deemed to give rise to a continuing public nuisance indictable at common law, the statutory grant of the injunctive power to the local authority does not run counter to constitutional limitations. The jurisdictional infirmity found in Hedden v. Hand, supra, whether it be real or seeming merely, is not present here, for under the Constitution of 1947 law and equity functions are now merged in the Superior Court by a provision that vests in that tribunal original general jurisdiction throughout the State in all causes. Article VI, Section III, paragraphs 2, 4. See, also, Article XI, Section IV, paragraph 3. And in that view there would be no infringement of the cited provisions of the Bill of Rights of the State Constitution barring prosecution for a criminal offense unless on the presentment or indictment of a grand jury and securing the right of trial by jury, for the design of the statute is to render the injunctive process available to the local authority for the enforcement of the statutory zoning policy and the local regulations made under the statute, and not to punish criminal offenses as such. The remedial process of injunction is invoked in aid of the zoning power, not to enforce the law's penalties for crime. It is a civil remedy not punitive in essence; its employment does not afford absolution from criminal responsibility, if such there be. It is a means of serving the common interest in matters related to the social well-being, order and economy of the community. There is in this procedure no assumption of jurisdiction over criminal offenses for their prosecution and punishment in the enforcement of the laws denouncing crime and penal transgressions. It is to be noted here that in Hedden v. Hand, supra, the court found no case under the common law in this country or in England where a court of equity had taken cognizance of a public nuisance founded "purely on moral turpitude." But as regards the constitutional right of trial by jury in prosecutions for crime, no *52 distinction is made between offenses involving moral turpitude and those which do not. When we consider the true nature of the injunctive process as merely a remedial measure to effectuate the principle of zoning, in the interest of the community, the constitutional difficulty perceived in Hedden v. Hand disappears. There, it was conceded that Chancery had jurisdiction to afford relief against an indictable public nuisance at the suit of an individual who had suffered special injury beyond that inflicted on the public at large. This jurisdiction was sustained as aimed not at the suppression of a public nuisance as such, but the redress of a private wrong to an individual and his protection against irreparable injury. By a parity of reasoning, the jurisdiction may also be invoked to consummate zoning as a common civil right, quite apart from the punishment of what may also be a criminal offense.
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