Kennedy v. City of Newark

• Decision Date: 16 February 1959
• Docket Number: No. A--62,A--62
• Citation: 29 N.J. 178,148 A.2d 473
• Parties: Jerome M. KENNEDY, Harris Silverman, Dorothea Farley, Fannie Woodie, Seymour Charles, Pierce Fellows, Angelo Storino, Anthony Cavanna, Julius Schorr, Carlton Swaim, Addison Higgins, John Lacey, Marjorie E. Lynn, Mary M. McCloskey, and Fred Siano, Plaintiffs-Respondents, v. CITY OF NEWARK, a municipal corporation, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 178

29 N.J. 178

148 A.2d 473

Jerome M. KENNEDY, Harris Silverman, Dorothea Farley, Fannie Woodie, Seymour Charles, Pierce Fellows, Angelo Storino Anthony Cavanna, Julius Schorr, Carlton Swaim, Addison Higgins, John Lacey, Marjorie E. Lynn, Mary M. McCloskey and Fred Siano, Plaintiffs-Respondents, v. CITY OF NEWARK, a municipal corporation, Defendant-Appellant.

No. A--62.

Supreme Court of New Jersey.

Argued Jan. 6, 1959.

Decided Feb. 16, 1959.

James E. Abrams, Newark, argued the cause for appellant.

Vincent P. Torppey, Corp. Counsel, Newark, attorney; Newark, James E. Abrams, Newark, of counsel; Thomas M. Kane and Joseph A. Ward, Newark, on the brief.

Robert L. Hood, Newark, argued the cause for respondents (Robert L. Hood, Newark, attorney).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Plaintiffs attack the validity of an ordinance of the City of Newark which requires all of its officers and employees to reside in the city as a condition for continued employment. The Law Division adjudged the ordinance to be invalid. We certified defendant's appeal on our motion before consideration of it by the Appellate Division.

The ordinance was adopted in 1932. After reciting the enactment of chapter 134 of the Laws of 1924, N.J.S.A. 11:22--7, which requires the Civil Service Commission to limit eligibility for local positions or employments to residents of the municipality concerned, the ordinance states it is for 'the best interests of the City, as a proper and reasonable condition of their continued employment, to require that all officers and employes * * * be bona fide residents of the City during the term of their employment.' It accordingly requires local residence and provides that failure 'to comply with this regulation shall be deemed a sufficient cause for removal or discharge.' It authorizes the director of any department (the city then had the commission form of government) in his discretion, for good cause shown, to permit an officer or employee to reside elsewhere, where (1) the health of the officer or employee necessitates such residence; (2) the nature of the employment is such as to require residence outside the city; or (3) 'special circumstances attach permitting residence outside of the city limits.' It further required all who were then non-resident to move to the city within a maximum period of one year.

In 1951 the city adopted a revision which incorporated the 1932 ordinance. It appears that loyalty oaths filed in 1955 disclosed that 585 employees were non-residents. On October 28, 1955 the council by resolution authorized the mayor to permit non-resident employees to reacquire residence within the city by January 1957, and we understand the mayor did announce this grade period. Plaintiffs, all non-resident employees, started this action in May 1956.

I

Plaintiffs urge in sweeping terms that it is beyond the power of government (state or local) to require public employees to be residents. Reliance is placed upon Article I, par. 1 of the New Jersey Constitution which reads:

'All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.'

Quite obviously the rights there proclaimed are not absolute. They are qualified by the police power vested in government for the common good.

The question is not whether a man is free to live where he will. Rather the question is whether he may live where he wishes and at the same time insist upon employment by government. Cf. McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 (Sup.Jud.Ct.1892). If there is a rational basis for a residence requirement in furtherance of the public welfare, the constitutional issue must be resolved in favor of the legislative power to ordain it. Plaintiffs cite no authority to support their position. Although many decisions will be found in which residence requirements are revealed, there is a virtual dearth of constitutional challenge. The reason no doubt is a common acceptance of the proposition that the Legislature may well find the public interest is advanced by residence within the political unit which provides the pay. Plaintiffs suggest that residence can be relevant only in the area in which there may be calls for emergency work. That is too narrow a view of permissible conceptions of public interest. Government may well conclude that residence will supply a stake or incentive for better performance in office or employment and as well advance the economy of the locality which yields the tax revenues. That our Legislature has long assumed the existence of authority so to legislate upon a broad basis appears from statutes referred to hereinafter. Such expressions as may be found uniformly reject claims of constitutional infirmity. Kaplan, Civil Service (1958), p. 49; 2 Antieau, Municipal Corporation Law (1955), § 13.06, p. 236; 3 McQuillin, Municipal Corporations (3d ed. 1949), § 12.59, p. 240.

The Legislature may commit the matter to local government for decision. Cf. Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J. 467, 478, 132 A.2d 794 (1957). Both the Home Rule Act and the Optional Municipal Charter Law, under which the City of Newark adopted one of the prescribed plans, grant broad authority adequate to include the subject here involved, in the absence of supervening legislation (an issue discussed in 'II' below). See R.S. 40:48--1(3) and 2, N.J.S.A.; N.J.S.A. 40:69A--29(a) and 30; Fred v. Mayor and Council of Borough of Old Tappan, 10 N.J. 515, 92 A.2d 473 (1952); cf. Hellyer v. Prendergast, 176 App.Div. 383, 162 N.Y.S. 788 (2nd Dept.1917).

Much of plaintiffs' proof and argument is addressed to the wisdom and justice (in a non-constitutional sense) of a residence requirement. It is not for the judiciary to entertain and resolve issues of that kind. We can concern ourselves solely with the existence of power; appeals relating to policy must be addressed to the local legislative body or to the Legislature itself.

Plaintiffs advance the further proposition, which may conveniently be considered at this juncture, that the ordinance constitutes an unreasonable exercise of power. That delegated power may not be exercised unreasonably is a settled rule. Grogan v. De Sapio, 11 N.J. 308, 94 A.2d 316 (1953); Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474, 86 A.2d 201 (1952), certiorari denied Burlington County Bridge Commission v. Driscoll, 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952); 5 McQuillin, Municipal Corporations (3d ed. 1949), § 18.01 et seq., p. 382; 62 C.J.S. Municipal Corporations § 203, p. 378.

No effort was made to demonstrate the ordinance was unreasonable when it was adopted in 1932. Rather, plaintiffs seek to measure its reasonableness against circumstances as they now exist or as they existed in the period when plaintiffs moved from the city. If we accept for present purposes the proposition that an ordinance, reasonable when adopted, may fall for unreasonableness because of events later ensuing, still plaintiffs have failed to support the charge. Eighteen employees testified. Some said they left the city for reasons of health, and others because of inability to find satisfactory quarters. Reference was also made to the conceded fact that the city found a housing shortage in its abortive effort to enact a rent control ordinance, Wagner v. Mayor and Municipal Council of City of Newark, supra (24 N.J. 467, 132 A.2d 794), and a realtor testified quite vaguely along that line. That the housing situation is tight seems clear. But absent is any proof that employees generally were driven from the city by insuperable difficulty or that a competent staff could not be recruited from residents. We cannot lightly assume that the city was so barren of living facilities that it was arbitrary to act as it did. The problems of some of a large body of public servants may well invite the thoughtful consideration of the city government in the light of other pertinent factors, but they are insufficient to support a judicial determination of unreasonableness. The power and responsibility are vested in another agency of government. The judiciary cannot exercise that power directly nor indirectly by measuring the policy determination by a judge's private view. Kozesnik v. Montgomery Tp., 24 N.J. 154, 167, 131 A.2d 1 (1957). The court can intervene only when unreasonableness is clearly established. Plaintiffs have not met that burden.

II

It is fundamental that in the exercise of delegated power a municipality may not legislate in conflict with state statutes. Hertz Washmobile System v. Village of South Orange, 41 N.J.Super. 110, 123, 124 A.2d 68 (Law Div.1956), affirmed 25 N.J. 207, 135 A.2d 524 (1957); Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp., 25 N.J. 188, 135 A.2d 515 (1957). It was upon a finding of such conflict or preemption by state law that the trial court struck down the ordinance. Reliance is placed upon (a) general statutes requiring residence for municipal officers and certain employees, and (b) the Civil Service Act. They will be considered separately.

A

Our statutes have long provided that officers of the State shall be residents thereof. R.S. 52:14--7, as amended, N.J.S.A. So also all persons holding an office, the authority and duties of which relate to a county only (except the county prosecutor), must reside therein. R.S. 40:11--1, as amended, N.J.S.A. A like requirement exists with respect to municipal officers (except counsel, attorney, engineer and health officer). R.S. 40:46--14, as amended, N.J.S.A. And with respect to officers and members of municipal police and fire departments residence is prerequisite to appointment and continuation in office or employment. R.S. 40:47--3, 5 and 6, as amended,...