Marks v. Township Committee of New Hanover Tp.

• Decision Date: 12 July 1973
• Citation: 124 N.J.Super. 504,308 A.2d 24
• Parties: Thomas G. MARKS, Plaintiff-Appellant, v. The TOWNSHIP COMMITTEE OF the TOWNSHIP OF NEW HANOVER, etc., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 504

124 N.J.Super. 504

308 A.2d 24

Thomas G. MARKS, Plaintiff-Appellant, v. The TOWNSHIP COMMITTEE OF the TOWNSHIP OF NEW HANOVER, etc et al., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted May 29, 1973.

Decided July 12, 1973.

Hartman, Schlesinger & Schlosser, Mount Holly, for plaintiff-appellant (Robert A. Porter, Mount Holly, on the brief).

Robert C. Maida, Trenton, for defendants-respondents.

Before Judges LORA, ALLCORN and HANDLER.

PER CURIAM.

Plaintiff appeals from the dismissal of his complaint in lieu of prerogative writs which sought a declaration that the governing body of New Hanover 'shall forthwith consist of 5 members' instead of its current composition of three members.

The concerned municipality (which, apparently, has not been made a party to this proceeding), is a township situated in Burlington County. The pertinent portions of those sections of the applicable statutes controlling the membership of the governing body of a township, provide:

The township committee shall consist of three members except where otherwise specifically provided by law. * * * (N.J.S.A. 40:146--1)

In every township * * * having a population of more than forty-five hundred, the township committee sall consist of five members. * * * (N.J.S.A. 40:146--2)

New Hanover contains within its borders portions of the federal enclaves commonly known as Fort Dix and McGuire Air Force Base, military reservations under the jurisdiction of the United States of America. According to the advance report of the 1970 census of New Jersey, published by the U.S. Department of Commerce as of December, 1970, parts of which are reproduced in the appendix, New Hanover had a total of 27,410 persons living within its geographical boundaries, of whom 23,045 were attributed to Fort Dix and 4,109 were attributed to McGuire Air Force Base. By simple computation, the persons not living within one or the other of the military reservations amounted to 256 in number.

The single issue in dispute is whether all or any part of the persons living in one or the other of the military reservations within the township should be included in determining its population within the meaning of that term as it is used in N.J.S.A. 40:146--2. It is the position of appellant that the census figures are controlling and that all persons living on the military reservations within the township must be included. He points to the definition of the term as set forth in N.J.S.A. 1:1--2, which reads in relevant part:

Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them.

Population; inhabitants. The word 'population,' when used in any statute, shall be taken to mean the population as shown by the latest Federal census effective within this State, and shall be construed as synonymous with 'inhabitants'.

Having due regard to the subject matter, it is apparent that the word 'population,' in the context in which it is used in N.J.S.A. 40:146--2, necessarily imports some degree of permanency of residence greater than that represented by those military personnel who, literally, are transients--those 'passing through or by a place with only a brief stay or sojourn,' Merriam-Webster Third International Dictionary (1961). It surely could not have been intended to include, for example, personnel ordered to one of these bases as a way station for transportation to another installation or assigned temporarily for a brief, specified period of training.

On the other hand, the degree of permanency of residence required to qualify as an 'inhabitant' or one of the 'population', no longer may be measured according to the test enunciated by our Supreme Court in 1957, as 'one who actually and permanently resides in a given place and who has his domicile there * * * (and) implies permanent abode.' In re Loch Arbour, 25 N.J. 258, 263, 135 A.2d 663, 666. ¹ This concept of permanent abode and domicile, in the sense of a present intent to remain indefinitely, has been recently substantially modified in Worden v. Mercer Cty. Bd. of Elections, 61 N.J. 325, 294 A.2d 233 (1972). It was there held, in effect, that college students who were bona fide residents of their college campuses and who satisfied the State's durational residence requirements, were entitled to register and to vote in their college communities, without regard to the presence or absence of any intention to make such communities their homes indefinitely. ²

So far as concerns voting eligibility, we can discern no significant relevant distinctions between college students who are bona fide residents of their college campuses and military personnel who are bona fide (I.e., nontransient) residents of their military reservations. See New Hanover Tp. v. Kelly, 121 N.J.Super. 245, 296 A.2d 554 (Law Div.1972). The fact that the person in military service may reside at his military reservation pursuant to order assignment, rather than as the result of his free and voluntary choice, differentiates him not at all from any other person whose business, employment or other pursuits compel his residence at or near a given community and involve regular or irregular transfer from place to place. ³

We are not unmindful of the provisions of N.J.Const. (1947), Art. II, par. 5 to the effect that no person in the military service of the United States 'shall be considered a resident of this State by being stationed in any military reservation within the State.' In view of Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), it is dubious that such provision could itself withstand constitutional...