was fined $50. Four milk dealers withdrew from the business for the reason that they could not comply with the requirements of our sanitary code. The remaining dealers have co-operated with the board in its endeavor to obtain a pure and wholesome milk supply.

During the year there were reported thirty-four cases of tuberculosis, thirtyeight cases of scarlet fever, thirty-two cases of diphtheria and twenty-two cases of typhoid fever. There was no case of small-pox during the year. The majority of the cases of typhoid fever were contracted outside of Montclair and developed within two weeks of the return of the patient to Montclair. One case of glanders and two cases of rabies were reported. One of the rabid dogs bit eight persons before he was killed and this board furnished the pasteur treatment for one victim who was unable to pay for the treatment himself.

There have been 267 deaths, which corresponds to a death-rate of 15.46. If we deduct the fifty-three non-resident deaths at the hospitals we have a corrected death-rate of 12.40. Of the total number of deaths 32.1 per cent. were under five years of age and of the resident deaths 28.0 per cent. were under five years of age. The death-rates are calculated from an estimated mid-year population of 17,250. There were twenty-four deaths from pneumonia, twenty-one from tuberculosis, six from whooping-cough, two from erysipelas, one from scarlet fever, one from measles, one from typhoid fever and none from diphtheria.

Legal Decisions and Opinions.

SMOKE NUISANCES.

The following ordinance was adopted by the board of health of Jersey City, June 26th, 1903:

"The owners, lessees, tenants, occupants and managers of every shop, manufactory and premises where any burning is done or wherein or upon any engine or locomotive is used shall not cause, suffer or allow any cinders, dust, gas or smoke to escape or be discharged from such building or premises to the detriment or annoyance of any person not being therein or thereon engaged.

"Nor shall any owner, lessee, occupant, manager, or any engineer, fireman or any other person cause, suffer, or allow any smoke to escape or be discharged from any such building or premises or any engine or locomotive used therein or thereon, as the result of the use of what is known as soft coal,.or any other substance.

"The continued or repeated infraction or violation of this ordinance or any section thereof continued or repeated throughout a period of time more than twenty-four hours in extent shall be considered as a separate and distinct violation for each and every such period of twenty-four hours.

"It shall be lawful for the mayor, or any member of the board of health, or the health inspector, or deputy health inspector, or any police officer of the city to enter into or upon any land, building or any other premises for the purpose of ascertaining whether or not the provisions of this ordinance are being complied with, and it shall not be lawful for any person or persons to obstruct or resist any such person or officer in the discharge of any such right or duty under the penalty herein provided.

"Any person or persons offending against any of the provisions of this ordinance or any section thereof shall forfeit and pay a penalty of fifty dollars for each and every violation thereof.

"Whenever any person or persons shall make complaint on oath or affirmation, according to law, that any person or persons has or may have violated any of the provisions of this ordinance before any police justice it shall be lawful for such police justice to issue process either in nature of a summons or warrant against the person or persons so charged, which process shall, when in the nature of a warrant, be returnable forthwith, and when in the nature of a summons shall be returnable in not less than one or more than ten entire days."

An action against the Pennsylvania Railroad Company was instituted under the provisions of the foregoing ordinance, and the decision of the Supreme Court in this case is as follows:

New Jersey Supreme Court, June term, 1904.

The Mayor, &c., of Jersey City v. Abercrombie. Certiorari.

An ordinance of Jersey City which provides that the owner of any premises on which an engine or locomotive is used shall not, under a penalty therein prescribed, permit any cinders, dust, gas or smoke to escape or be discharged therefrom to the detriment or annoyance of any person not being therein or

thereon engaged, is unreasonable and void, at least in so far as it affects the Pennsylvania Railroad Company, which has the legal right to use either hard or soft coal, using due care and doing no unnecessary damage.

New Jersey Supreme Court, June term, 1904.

The Mayor and Aldermen v. Frank P. Abercrombie. Certiorari.

Argued at February term, 1904, before Justices Van Syckel, Fort and Garretson. George L. Record and Robert Carey for plaintiff; Vredenburgh, Wall & Van Winkle for defendant.

The opinion of the court was delivered by Van Syckel, J.: The certiorari in this case brings up a judgment of the First Criminal Court of Jersey City against Abercrombie for violating the following ordinance while superintendent of the Pennsylvania Railroad Company:

"An ordinance to abate all nuisances arising or resulting from the burning of soft coal or other substances and prohibiting the escape or discharge of smoke, dust, gas and cinders. Section 219. The owners, lessees, tenants, occupants and managers of every shop, manufactory and premises where any burning is done, or wherein or upon any engine or locomotive is used, shall not cause, suffer or allow any cinders, dust, gas, or smoke to escape or be discharged from such building or premises to the detriment or annoyance of any person not being therein or thereon engaged. Nor shall any owner, lessee, occupant, manager or any engineer, fireman, or any other person, cause, suffer or allow any smoke to escape or be discharged from any such building or premises, or any engine or locomotive used therein or thereon, as the result of the use of what is known as soft coal or any other substance."

The Pennsylvania railroad has the legal right to run its engines with the use of either hard or soft coal, so long as reasonable care is used and no unnecessary damage is done. A strict enforcement of the ordinance would deprive the company of the right to run trains through Jersey City. The ordinance is unreasonable, and therefore void.

Jenkins v. Pennsylvania Railroad, 38 Vr. 331.

The judgment should be reversed.

Following is the opinion of the Court of Errors and Appeals in the action brought by the State board of health to prevent the pollution of a tributary of the Maurice river by sewage from the borough of Vineland:

New Jersey Court of Errors and Appeals.

The State, ex rel. the Board of Health of the State of New Jersey, appellant, v. The Borough of Vineland, respondent.

On appeal from decree advised by Vice Chancellor Leaming.

For the appellant, Edward D. Duffield and Robert H. McCarter, attorneygeneral; for the respondent, Herbert C. Bartlett and Royal P. Teller. The opinion of the court was delivered by Gummere, C. J.

This is an appeal from a decree of the Court of Chancery dismissing a bill of complaint filed in the name of the State on the relation of the State board of health, for the purpose of securing an injunction to restrain the borough of Vineland from permitting the effluent from its sewage filtration beds to flow into the waters of a tributary of Maurice river, from which the city of Millville takes its water-supply. The bill is filed by the State board of health under the act of March 17th, 1899, entitled "An act to secure the purity of the public supplies of potable waters in this State." It was dismissed on the ground that, as the learned vice chancellor considered, this statute was repealed, by implication, by a subsequent act passed in the same year, 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," as revised and amended by the legislature of 1900. P. L. 1900, p. 113.

We have had occasion at the present term to consider the question whether the act creating the State sewerage commission, by necessary implication, repealed the act to secure the purity of the public supplies of potable waters in this State, and reached the conclusion that it repealed only so much of the prior legislation as was repugnant to the provisions of the later act. State, ex rel. Board of Health of New Jersey, v. Ihnken.

It appears from the proofs in the case that the borough of Vineland reconstructed the plant for the treatment of its sewage, the effluent of which flows into the tributary of Maurice river, in the year 1903, under conditions which were approved by the State sewerage commission, and upon plans which it submitted to that body, before constructing its plant, and which received its approval. By the seventh section of the act creating the State sewerage commission, as amended in 1900, it is declared that "It shall be unlawful for any person, corporation or municipality to build, or cause to be ouilt, or operate, any plant for the treatment of sewage or other polluting substance, from which the effluent is to flow into any of the waters of this State, except under such conditions as shall be approved by. the State sewerage commission, to whom any new plans shall be submitted before building." The enactment of this provision is a legislative recognition of the fact that the health of the citizens of a municipality absolutely requires the adoption of some method for the disposition of its sewage, and that some part of the effluent thereof will almost inevitably be carried to running streams. Recognizing these facts, and the importance of having such disposal plants constructed under proper supervision, it created a body for that purpose, and declared that it should be unlawful for a municipality to construct any such disposal plant which did not meet with its approval, and, by necessary inference, made lawful all such plants as were constructed upon plans and under conditions approved by the commission. By necessary implication, also, it removed from the supervision of the State board of health sewerage disposal plants so constructed, and relieved the owners and users of such plants from the liabilities created by the provisions of "An act to secure the purity of the public supplies of potable waters in this State."

For this reason the decree appealed from should be affirmed.

Opinion of the Court of Errors and Appeals in the action brought by the State board of health to prevent the pollution of the Pequannock river. State, ex rel. Board of Health of State of New Jersey, v. Ihnken. Court of Errors and Appeals of New Jersey, June 19th, 1907.

Waters. Provisions against pollution.-Repeal.

While Pub. Laws 1899, p. 73, "An act to secure the purity of the public supplies of potable waters," is repealed in so far as its provisions are repugnant to those of Pub. Laws 1899, p. 536, “An act to prevent the pollution of the waters of this State by the establishment of a State sewerage commission," yet permitting waste water from washing cans and bottles in a creamery, and from the washing of the floors thereof, to flow into a stream from which a city obtains its water-supply, being an act not placed within the cognizance of the sewerage commission by the later act, the power to invoke the aid of the Court of Chancery to restrain such action still remains in the State board of health under the former act.

Appeal from Court of Chancery.

Suit by the State, on relation of the Board of Health of the State of New

Jersey, against George Ihnken. From an adverse decree, defendant appeals. Affirmed.

William C. Cudlipp, for appellant. Edward D. Duffield and Robert H. McCarter, attorney-general, for the State.

Gummere, C. J. The bill in this case was filed in the name of the State, on the relation of the State board of health, for an injunction to restrain the appellant, who was the defendant below, from permitting the waste water from the washing of cans and bottles, and the cleansing of the floors in his creamery, near Stockholm, in this State, to flow into and pollute a tributary of the Pequannock river, from which the city of Newark obtains its supply of water for domestic use. The bill was filed pursuant to authority conferred upon the State board by the provisions of "An act to secure the purity of the public supplies of potable waters in this State," approved March 17th, 1899 (P. L., p. 73). The first section of that act provides that "no sewage, drainage, domestic or factory refuse, excremental or other polluting matters of any kind whatsoever, which either by itself, or in connection with other matter, will corrupt or impair, or tend to corrupt and impair, the quality of the water of any river, brook, stream, or any tributary or branch thereof, or of any lake, pond, well, spring, or other reservoir from which is taken, or may be taken, any public supply of water for domestic use in any city, town, borough, township of other municipality of this State, or which will render or tend to render such water injurious to health, shall be placed in or discharged into the waters, or placed or deposited upon the ice, of any such river, brook, stream, or any tributary or branch thereof, or of any lake, pond, well, spring or other reservoir, above the point from which any city, town, borough, township or other municipality shall or may obtain its supply of water for domestic use; nor shall any such sewage, drainage, domestic or factory refuse, excremental or other polluting matter, be placed or suffered to remain upon the banks of any such river, brook, stream, or of any tributary of branch thereof, or of any lake, pond, well, spring, or other reservoir, above the point from which any city, town, borough, township or other municipality, shall or may obtain its supply of water for domestic use as aforesaid." No person or corporation is exempted from the provision of this statute, except municipalities which, at the date of the passage of the act, had a public sewer system legally constructed under municipal authority, discharging its drainage or sewage into any such river, brook, stream, &c.

Upon the hearing in the Court of Chancery, it was considered that the proofs made it clear that the defendant was engaged in polluting the waters of a tributary of the Pequannock river, about ten miles above the Newark intake, and that he was doing so within the prohibition of the act of the legislature just mentioned, as construed by the Court of Chancery, and subsequently by this court, in the case of State Board of Health v. Diamond Mills Paper Company, 63 N. J. Eq. 111, 51 Atl. 1019; S. C. on appeal, 64 N. J. Eq. 793, 53 Atl. 1125. We concur with the learned vice chancellor in his conclusion upon the facts, and in the view expressed by him that the acts of the defendant which are complained of are within the prohibition of the statute referred to. It is argued before us, however, that the act of March 17th, 1899, was repealed, by implication, by a subsequent statute passed in the same year, and 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. 536), and that for this reason the decree appealed