Asbury Park Press, Inc. v. Woolley

• Decision Date: 06 June 1960
• Docket Number: No. A--101,A--101
• Citation: 33 N.J. 1,161 A.2d 705
• Parties: ASBURY PARK PRESS, INC., et al., Plaintiffs-Appellants, v. J. Russell WOOLLEY, County Clerk of the County of Monmouth, et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 1

33 N.J. 1

161 A.2d 705

ASBURY PARK PRESS, INC., et al., Plaintiffs-Appellants,

v.

J. Russell WOOLLEY, County Clerk of the County of Monmouth,

et al., Defendants-Respondents.

No. A--101.

Supreme Court of New Jersey.

Argued March 22, 1960.

Decided June 6, 1960.

William Novogrod, Asbury Park, for plaintiffs-appellants (William Miller, Princeton, of counsel and on the brief).

Lawrence A. Carton, Jr., Atlantic Highlands, for defendant-respondent, J. Russell Woolley, County Clerk of Monmouth County (8roberts, Pillsbury & Carton, Atlantic Highlands, attorneys; William E. Russell, Atlantic Highlands, on the brief).

Nicholas T. Fernicola, Newark, for defendant-respondent, Anthony Giuliano, County Clerk of Essex County (George H. Callahan, Newark, of counsel).

Jacob Friedland, Jersey City, for defendant-respondent, Edward J. Borrone, Hudson County Clerk (William F. Kelly, Jr., County (Roberts, Pillsbury & Carton, Atlantic Theodore I. Botter, Deputy Atty. Gen., for defendant-respondent, Edward J. Patten, Secretary of State (David D. Furman, Atty. Gen., attorney).

The opinion of the court was delivered by

FRANCIS, J.

Plaintiffs are citizens and taxpayers of this State and have their residence in the County of Monmouth. In this action they seek a declaration (1) that the 1941 General Assembly Apportionment Act, L.1941, c. 310, N.J.S.A. 52:10--1, is violative of Article IV, Section III, paragraph 1, of the 1947 Constitution, and (2) that the County of Monmouth is entitled to elect three members of the General Assembly rather than the two allotted by the 1941 Act. The complaint refers to the fact that in every year in which members of the General Assembly are to be elected, the defendant Secretary of State under N.J.S.A. 19:12--1 is obliged to direct and cause to be delivered to the clerk of the county and to the county board of elections wherein any such election is to be held, a notice stating that such officers are to be elected. It is alleged further that upon receipt of the notice the defendant county clerks have the duty, by virtue of N.J.S.A. 19:12--3, to cause a copy thereof certified to be true and correct to be delivered to the clerk of each municipality in the county not later than the fiftieth day preceding the primary election for the general election. By way of ancillary relief, plaintiffs pray for the issuance of an injunction restraining the Secretary of State and the named county clerks from issuing delivering and acting upon the notice of election.

The trial court dismissed the complaint on the ground that decision as to need for reapportionment as well as the formula to be applied in the event of reapportionment is committed by the Constitution exclusively to the legislative branch of the government. The matter is before us on our own certification.

Article IV, Section III, paragraph 1, of the 1947 Constitution provides, in much the same form as did the Constitution of 1844:

'The General Assembly shall be composed of members elected biennially by the legally qualified voters of the counties, respectively, for terms beginning at noon of the second Tuesday in January next following their election and ending at noon of the second Tuesday in January two years thereafter. The members of the General Assembly shall be apportioned among the several counties as nearly as may be according to the number of their inhabitants, but each county shall at all times be entitled to one member and the whole number of members shall never exceed sixty. The present apportionment shall continue until the next census of the United States shall have been taken. Apportionment of the members of the General Assembly Shall be made by the Legislature at the first session after the next and every subsequent census, and each apportionment when made shall remain unaltered until the following census shall have been taken.' (Emphasis added.)

Subsequent to the 1940 census and on the basis of the number of inhabitants of each county disclosed thereby, the Legislature, by chapter 310, L.1941, reapportioned the Assembly membership as follows:

'Atlantic county, two members;

'Bergen county, six members;

'Burlington county, one member;

'Camden county, three members;

Cape May county, one member;

'Cumberland county, one member;

'Essex county, twelve members;

'Gloucester county, one member;

'Hudson county, nine members;

'Hunterdon county, one member;

'Mercer county, three members;

'Middlesex county, three members;

'Monmouth county, two members;

'Morris county, two members;

'Ocean county, one member;

'Passaic county, four members;

'Salem county, one member;

'Somerset county, one member;

'Sussex county, one member;

'Union county, four members;

'Warren county, one member.'

The 1950 census of New Jersey was certified by the United States Bureau of the Census on February 5, 1952, and was filed by the Governor with the Secretary of State on February 11, 1952. Despite the revelation from the figures that substantial relative changes in the population of various counties had occurred since 1940, during the succeeding eight years the Legislature failed to heed the Constitutional mandate that the Assembly shall be apportioned 'at the first session' after the census. Although many bills have been introduced for the purpose, the 1941 act still controls the number of assemblymen to be elected from each county. As has been indicated, the imperative language of the present Constitution appears in substantially the same form as that of 1844, and the parties are in agreement that for the first time in the intervening 100 years there has been a failure to discharge the duty to apportion after each census. See New Jersey Legislative Reapportionment (Nov.1957), prepared and published by the Law and Legislative Reference Bureau, Division of the State Library, Archives and History.

Plaintiffs do not claim that the 1941 act was invalid at the time of adoption. They contend, however, that the 1950 census shows such a change in the number of inhabitants in the various counties that a different distribution of Assembly seats, some counties being entitled to more and some less than presently specified, is required by the Constitution. And they urge that these changes, considered in the light of the Constitutional mandate, have caused the 1941 legislation to become invalid. Cf. Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 79 L.Ed. 949 (1935); Jones v. Freeman, 193 Okl. 554, 146 P.2d 564 (1944), appeal dismissed and certiorari denied 322 U.S. 717, 64 S.Ct. 1288, 88 L.Ed. 1558 (1943).

Effectuation of the prescription for allocation of seats among the counties 'as nearly as may be' according to the number of their inhabitants, with the maximum number of seats fixed at 60, requires mathematical calculations. If the total population of the State, as shown by the 1950 census, were divided by 60 and the quotient could be divided evenly into the population of each county, the task would be simple. Unfortunately such a perfect result is unlikely, and so the Legislature has the difficult task of distributing whole seats to the extent indicated by the population division (subject to the order of the organic law that each county must have at least one seat) and then allocating the balance in accordance with some treatment of the remaining fractions which will conform with the 'as nearly as may be' apportionment mandate.

The record and the briefs indicate that there are five well known modern mathematical formulas which may be used. They are:

1. Method of smallest divisors.

2. Method of the harmonic mean.

3. Method of equal proportions.

4. Method of major fractions.

5. Method of greatest divisors.

Report of the National Academy of Science to the Speaker of the House of Representatives, February 4, 1929 (entered in Congressional Record, 70th Congress, 2d Session, Vol. 70, Part 5, pp. 4966, 4967); Report Upon the Reapportionment of Representatives by the Advisory Committee to the Director of the Census, submitted to the Senate Committee on Census, 1921 (entered in Congressional Record, 69th Congress, 1st Session, Vol. 67, Part 7, pp. 7078, 7080); Huntington, Methods of Apportionment in Congress, 1940 (Senate Document No. 304, 76th Congress, 3d Session, 1940); Schmeckebier, Congressional Apportionment, The Brookings Institution, 1941; Report of Committee on Apportionment of the American Political Science Association 1950 (reprinted in The American Political Science Review, Vol. 45, No. 1, Mar. 1951, pp. 153--157); New Jersey Legislative Reapportionment, supra, pp. 11--12; and see Shaw v. Adkins, 202 Ark. 856, 153 S.W.2d 415 (Sup.Ct.1941). Informed students of these formulas speak of some of them as favoring the larger counties or states, while others favor the smaller ones. One formula, the method of equal proportions, seems generally to be regarded as producing the smallest relative differences in population per assemblyman and the smallest relative difference in the individual share in an assemblyman. Report of the National Academy of Sciences, supra; Huntington, Methods of Apportionment, supra.

Explanation or illustration of the way these different methods of apportionment operate is not necessary for purposes of this opinion. It is sufficient at this time to point out that if all five tests are applied to the population of the various counties as shown by the 1950 census, the common result is that at least one county is over-represented by a minimum of one too many assemblymen, while another county is under-represented by one too few assemblymen. Indeed, employment of the Vinton and Arithmetical Elimination Process, two other mathematical formulas which have been used in the past in this State and elsewhere, but which do not presently appear to be regarded as efficient as the so-called modern types, produces the same result. Other disparties revealed by all of the tests mentioned likewise derogate from the adequacy of the...