CHRISTOPHER JACKMAN AND WINFIELD CHASMAR, JR., PLAINTIFFS-APPELLANTS, v. JOHN M. BODINE, COUNTY CLERK OF WARREN COUNTY; HENRY B. CARR, COUNTY CLERK OF SUSSEX COUNTY; THOMAS J. GRIEVES, COUNTY CLERK OF SALEM COUNTY; BERGEN N. CARTER, JR., COUNTY CLERK OF HUNTERDON COUNTY; HENRY F. ANDERSON, COUNTY CLERK OF CAPE MAY COUNTY; ROBERT J. BURKHARDT, SECRETARY OF STATE OF THE STATE OF NEW JERSEY; FRANK S. FARLEY, PRESIDENT OF THE SENATE OF THE STATE OF NEW JERSEY, AND JOHN W. DAVIS, SPEAKER OF THE GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
Supreme Court of New Jersey
November 25, 1964
Argued November 6, 1963 — Reargued October 5, 1964
43 N.J. 453
See also 43 N. J. 401, — A. 2d —
Mr. Wesley L. Lance and Mr. James Dorment, Jr. (November 6, 1963 argument) argued the cause for respondent President of the Senate (Messrs. O‘Mara, Schumann, Davis & Lynch, of counsel).
Mr. Walter H. Jones (October 5, 1964 argument) argued the cause for respondent Speaker of the General Assembly (Mr. Marvin H. Gladstone, on the brief).
Mr. Arthur J. Sills, Attorney General of New Jersey (October 5, 1964 argument) argued the cause for respondent Secretary of State (Mr. Alan B. Handler, First Assistant Attorney General, of counsel and on the brief); Mr. Theodore I. Botter, First Assistant Attorney General (November 6, 1963 argument) argued the cause for respondents Secretary of State and Speaker of the General Assembly.
The opinion of the court was delivered by
WEINTRAUB, C. J. In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the Supreme Court of the United States held justiciable the question whether the basis established by a State for election to its legislature denies equal protection of the law in violation of the
The majority opinion expressly refrained from stating a test to measure compliance with the equal protection provision. A view upon that topic appeared but obliquely in the majority‘s discussion of the claim that the lack of manageable judicial standards made the issue political and nonjusticiable. In that connection the majority opinion said (369 U. S., at p. 226, 82 S. Ct., at p. 715, 7 L. Ed. 2d, at p. 691):
“* * * Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.”
In the matter now before us, plaintiffs sought an adjudication that the provisions of our State Constitution fixing the composition of the State Legislature run afoul of the equal
We certified the ensuing appeal before the Appellate Division considered it. The matter was argued before us on November 6, 1963. Aware of causes pending in the Supreme Court of the United States, we withheld decision in the hope that the opinions in those matters would spell out the demands of equal protection in this area. On June 15, 1964 the Supreme Court decided Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595; Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609; Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964). We then called for and received further briefs and argument with respect to the impact of those cases.
I.
Counsel for the Speaker of the General Assembly asks that we stay our hand until the Legislature has had an opportunity to act. We do not see how we can do nothing or how such abstention would help.
There are two basic questions involved in this litigation. One is whether the legislative article of our State Constitution is invalid in the respects alleged by plaintiffs. The other, if such invalidity is found, is what must be done to meet the federal demand. Counsel‘s request that we abstain for the time being may be appropriate with respect to the second question, as to which we shall say more later in this opinion. But as to the first question, we cannot refuse to decide a con-
II.
In Reynolds v. Sims, supra, 377 U. S., at p. 568, 84 S. Ct., at p. 1385, 12 L. Ed. 2d, at p. 531, the Court, accepting as applicable the aphorism “one person, one vote,” concluded:
“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual‘s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. * * *”
These two sentences are fused in the companion opinions into the single statement that both houses of a bicameral state legislature must be apportioned “substantially on a population basis.” See, e. g., WMCA v. Lomenzo, supra, 377 U. S., at p. 652, 84 S. Ct., at p. 1428, 12 L. Ed. 2d, at p. 580.
A.
Ours is a bicameral legislature.
“The Senate shall be composed of one Senator from each county, elected by the legally qualified voters of the county, for a term begin-
ning at noon of the second Tuesday in January next following his election and ending at noon of the second Tuesday in January four years thereafter.”
“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.”
It is at once evident that these provisions of our Constitution, on their face, do not meet the quoted test of Reynolds v. Sims. As to the General Assembly, the apportionment is basically upon population, and it may readily be urged that the apportionment is substantially on population notwithstanding that each county is entitled to one member and the whole number of members may not exceed 60.1 But as to the Senate, it is perfectly plain that the apportionment basis is indif-
If the Senate is malapportioned, we need not consider whether the General Assembly could pass muster. In Lucas
In view of the allocation of one senator to each county, none of the parties before us suggests that our Legislature literally meets the quoted standard of Reynolds v. Sims, but counsel for the President of the Senate, while conceding that much, does contend that our constitutional plan is nonetheless beyond the thrust of Reynolds v. Sims for other reasons to which we now turn.
B.
The principal argument upon which Reynolds is sought to be distinguished runs this way: our legislative plan is essentially the same as that of the Congress and is republican in form; the conclusion in Reynolds that both houses must be apportioned upon population stems from the concept of “one person, one vote“; and since the people at a statewide poll approved the present Constitution on the basis of “one person, one vote,” it should follow that the demands of equal protection of the law were met.
One component of the argument is that the state and federal legislatures are essentially the same in structure. We think this is correct. As to the Senate, both Constitutions provide for equal representation of people of existing political areas without regard to their numbers, the
In this connection we note that the counties of our State were established to meet the needs of population centers as they developed, and that whatever partisan advantage may have been thought to reside in the creation of a particular county, county lines have not since been manipulated for such gain. No new counties have been established since 1857, and as a practical matter under our existing Constitution no one today would attempt to gerrymander county lines for partisan purposes. The citizens of each county have a community of interest by virtue of their common responsibility to provide
Hence we think it correct to say that our State Legislature does parallel the federal plan. We think it also true that our legislative structure is a republican form of government within the meaning of
This brings us to the question whether the comparability of structure of our State Legislature with that of the Federal Congress can be significant in this controversy.
The argument the other way notes that actually the 13 States had already agreed “that the Union shall be perpetual” by the Articles of Confederation, Art. XIII, but nonetheless, if it be granted that the 13 States (perhaps more strictly their inhabitants, i. e., “WE THE PEOPLE of the United States“) bargained as sovereigns in the formation of a new constitution, still it does not follow that the “compromise” they reached was an arbitrary invention which denied the people of the United States something so fundamental as equal protection of the law.5 Rather, it is argued, the States agreed
The argument continues that so long as the membership in one house is based on population, the affirmative power to legislate remains in the majority of the people for the reason that the house apportioned on the basis of area can exercise only a veto power; that this veto power is no different in principle from the sundry other restraints upon the majority will which give character to our constitutional plan of government. The point pressed is that no man is a member of the majority upon all issues and hence all the citizens have in common a concern that their interests as members of sundry minorities may not be heard or adequately considered by the majorities of the moment upon a particular issue; that there is no single way for the majority to express its will upon the many topics which arise in the Legislature, even political parties being inadequate to that end; that although county lines surely do not mark the boundaries of most interests, still they reflect enough to permit the majority to vest a veto in a house in which each such area has an equal voice; that despite the constant threats of deadlock and doom which abound in our constitutional system, the necessary statesmanship appears when the need is great, and the experience at the federal level so demonstrates.
Indeed, they argue, the election of State legislators from districts rather than at large from the entire State bespeaks the existence of area interests. More than that, elections by districts involve the same or equal vice, if such it is, of denying a person a meaningful vote because of the place where he
This debate is not new in our State. The same subject was discussed 120 years ago in like terms and with specific reference to the validity of the “federal analogy.” The occasion was the Constitutional Convention of 1844, and the dialogue ran virtually throughout the period of the Convention as reported in Proceedings of the New Jersey State Constitutional Convention of 1844.
The proponents of pure majority rule not only assailed the election of senators on a basis other than population, but also attacked the gubernatorial veto as “anti-republican and anti-democratic” (p. 191), contending it intruded upon the power of a majority to legislate, while defenders of the veto spoke of it as “guarding against hasty legislation” and cited the federal plan to support their position (p. 180). Upon the same majority theme, it was urged that a majority vote should suffice to amend the Constitution, and again the validity of the federal analogy was argued (pp. 57-70). The critical proposal that senators be elected from districts of equal population was finally defeated 37 to 15 (pp. 512-13). It is interesting that the delegates to the Convention, which included many of the distinguished figures of that day, Introduction, Proceedings of the New Jersey State Constitutional Conven-
We have sketched the argument upon the merits of the federal analogy. We need not express our views upon this lively subject since we are satisfied that the Supreme Court has settled the matter and has held that a State legislature, constituted as is the Congress, denies equal protection of the law.
It is true that in none of the cited cases did the State legislature faithfully accord with the federal pattern. In fact, the majority noted the discrepancy. Nonetheless the majority characterized the discrepancy as merely an additional circumstance7 and deliberately rejected the federal analogy. Thus in Reynolds the majority, after agreeing that the Alabama plan did not at all match the federal plan, added that it finds “the federal analogy inapposite and irrelevant to state legislative districting schemes.” 377 U. S., at p. 573, 84 S. Ct., at p. 1387, 12 L. Ed. 2d, at p. 533. The majority expanded upon
“The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances, it is based on the consideration that in establishing our type of federalism a group of formerly independent States bound themselves together under one national government. Admittedly, the original 13 States surrendered some of their sovereignty in agreeing to join together ‘to form a more perfect Union.’ But at the heart of our constitutional system remains the concept of separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government. * * *
Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. * * *
Thus, we conclude that the plan contained in the 67-Senator Amendment for apportioning seats in the Alabama Legislature cannot be sustained by recourse to the so-called federal analogy. Nor can any other inequitable state legislative apportionment scheme be justified on such an asserted basis. This does not necessarily mean that such a plan is irrational or involves something other than a ‘republican form of government.’ We conclude simply that such a plan is impermissible for the States under the Equal Protection Clause, since perforce resulting, in virtually every case, in submergence of the equal-population principle in at least one house of a state legislature.
Since we find the so-called federal analogy inapposite to a consideration of the constitutional validity of state legislative apportionment schemes, we necessarily hold that the Equal Protection Clause requires both houses of a state legislature to be apportioned on a population basis.”
The majority then rejected the view that the veto power may be reposed in one house if the other is apportioned on population, saying (377 U. S., at p. 576, 84 S. Ct., at p. 1389, 12 L. Ed. 2d, at p. 535):
“* * * Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis, * * *”
This brings us to the final step of the effort to distinguish Reynolds, i. e., that even if a counterpart of the federal legislature does not per se satisfy the doctrine of “one person, one vote,” still the majority of our voters fully expressed their will in statewide elections conducted on a “one person, one vote” basis when they voted to hold the Constitutional Convention of 1947 and thereafter to adopt the constitution the Convention proposed.
There are two difficulties with this contention.
The first difficulty is factual. The statute which submitted to referendum the question whether there should be a convention provided “that the convention shall in no event agree upon, propose or submit to vote of the people * * * any provision for change in the present territorial limits of the respective counties, or any provision for legislative representation other than provision for a Senate composed of one Sen-
Although it is true that the people voted for the referendum as thus clearly limited and adopted also the constitution the Convention proposed, it would be quite unreal to say the people had a meaningful choice. The alternative was to vote down the program, in which event the identical legislative pattern would have persisted by virtue of the Constitution of 1844.
Nor is the factual claim improved by examining the basis for the selection of delegates to the Convention. The people of each county had as many delegates as they had in a joint session of the Legislature.
The second reason why the vote in 1947 is of no consequence is that the decision of a majority in 1947 could hardly foreclose the right of succeeding majorities to equal protection. The proposition which is sought to be tendered to us could not have arguable substance unless there were continuously available a practical remedy whereby the majority of the people could at reasonable times select another republican form of government. Our State Constitution does proclaim the inherent power in the people to change the Constitution, saying in
“All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and
they have the right at all times to alter or reform the same, whenever the public good may require it.”
However, there is no machinery in our State, constitutional or statutory, whereby the people can alter the legislative branch of government on their own initiative.
This being so, we are not called upon to say whether a republican form of government plus a continuing feasible opportunity in the people to initiate a change to another republican form would give adequate effect to the doctrine of “one person, one vote.”9
The remaining point pressed by counsel for the President of the Senate is that New Jersey withdrew its ratification of the
Counsel of course does not contend for a general proposition that an amendment of the Federal Constitution binds only the ratifying States. Rather he contends the present situation is exceptional and so argues on the basis of so much of Reynolds v. Sims as rejects the federal analogy. The argument is that if the structure of the federal legislature is valid notwithstanding its clash with the concept of equal protection only because 13 sovereigns compromised upon the plan, it ought to follow that each of those sovereigns retained by implication the sovereign power to control its own form of government, subject only to the federal guarantee of a “republican” form of government, under
We think the answer is that the Federal Constitution contains all the terms of the “contract,” if it be so viewed, and that Constitution restrains the process of amendment in but
three respects, of which the form of the state government is not one.10The legislative article of our State Constitution must therefore be adjudged to be invalid insofar as it deals with the apportionment of the members of the Legislature.
III.
We come then to the matter of judicial relief.
We need not explore the abstract question whether a legislature, thus constituted in violation of the equal protection clause, can exercise the legislative power. The answer is provided abruptly by sheer necessity. The familiar doctrine which prevents collateral attack upon past acts of “de facto” officials rests upon an underlying need for governmental order. That need is even more imperative when the spectre proposed is a government without legislative power. The answer must be that the legislators continue in office with the powers of their branch of government, subject however to the duty of the State to bring the legislative branch into harmony with the Federal Constitution with diligence.
The duty to comply with the equal protection clause rests upon the three branches of State Government and upon the people of the State as well. The question is what part must be played by each.
We think it clear that the judiciary should not itself devise a plan except as a last resort. The reasons, simply stated, are that the prescription of a plan of apportionment is laden with political controversy from which the judiciary cannot be too distant, and further, that if the judiciary should devise an interim plan, that plan will likely seem so attractive to some as to impede the search for common agreement. We therefore will confine our role for the present to the minimum
We think it clear from Reynolds v. Sims that further elections to the Legislature cannot be held upon the existing constitutional plan. It follows that there must be a reapportionment in time for a general election of all legislators in November 1965. As a practical matter the Legislature must be held to have the power to legislate an interim solution in time for that election. The primary dates may, of course, be changed, if need be, to permit a seasonable selection of candidates for both houses. The Legislature may fix the date for the commencement of the terms of the new incumbents, not later, however, than the second Tuesday in January 1966, the time fixed for the commencement of the legislative year in
The more difficult question is how a permanent plan may be devised, more specifically whether the plan may be proposed only by a constitutional convention or whether the Legislature may initiate some other process to that end.
Our Constitution deals expressly with the process of amendment. It is silent as to constitutional conventions, but it is perfectly clear that the Legislature may provide, as it did in 1844 and in 1947, the machinery whereby the people can meet in convention through their delegates in pursuit of their “right at all times to alter or reform” the government.
It is generally said that amendments deal with limited changes or additions, the convention to be employed to effect
“* * * Now, it is very clear on the face of the constitutional provisions authorizing amendments through the agency of the legislature, as compared with those authorizing the call of Conventions, that the purpose of the former is different from that of the latter; in other words, the thing authorized to be done by the one class of provisions is a different thing from that authorized to be done by the other. Thus, the purpose of the legislative mode is to bring about amendments which are few and simple and independent; and on the other hand, that of the mode through Conventions is to revise the entire Constitution, with a view to propose either a new one, or, as the greater includes the less, to propose specific and particular amendments to it.”
See also In re Opinion to the Governor, supra, 55 R.I., at p. 56, 178 A., at p. 439; Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L.R.A. 312 (Sup. Ct. 1894); Rivera-Cruz v. Gray, 104 So. 2d 501 (Fla. Sup. Ct. 1958); Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (Sup. Ct. 1912), appeal dismissed sub nom. Marshall v. Dye, 231 U.S. 250, 34 S. Ct. 92, 58 L. Ed. 206 (1913); cf. McFadden v. Jordan, 32 Cal. 2d 330, 196 P. 2d 787 (Sup. Ct. 1948).
Some members of the Court believe that a Constitutional Convention is the sole permissible method of dealing with the problem before us, for the reasons stated in their footnote.11
The other members of the Court agree a convention is certainly a permissible method. They are concerned, however, with whether, or in what circumstances, this Court can or should declare it to be the sole method. They believe we need not and should not now decide this question or the related one whether the Legislature elected in November 1965 as required above may not itself propose the necessary constitu-
If the Legislature should decide to call a Constitutional Convention, then all members of the Court agree upon the following: Since the legislative article must be altered, we see no need to submit to the vote of the people the question whether a convention should be called. Nor do we think it necessary to await the election in November 1965 of a properly apportioned legislative body. The present Legislature can start the process, provided the delegates are required to be elected on a basis that is beyond dispute. We take it, for example, that in the light of our traditions, no one would seriously question elections from the counties, provided the representa-
perative that the people adopt an amendment; they may accept or reject a proposal, and if they reject it, the existing expression continues to prevail. But in the present matter, the people cannot choose whether to act or not to act because there is a fundamental void which must be filled if there is to be a government. As the Constitution now stands, there is a grant of the legislative power to a legislature without structure or body. This is so, not by design, but rather because a structure, fully provided, has been found to be invalid. Stated in other terms, the Constitution is fundamentally incomplete, an unfinished document, and the power to complete it should be exercised by the people through the process suited for such original creation, i. e., a constitutional convention. Cf. Ellingham v. Dye, supra, 178 Ind. 336, 99 N.E., at p. 9.
That the amendatory process is not suited to meet this imperative need is evident from the procedure whereby the Constitution deliberately encumbered that process. If a proposal is “agreed to by three-fifths of all the members of each of the respective houses,” it may be submitted to the people, but failing that measure of agreement, the proposal must have the vote of “a majority of all the members of each” house in two successive legislative years.
These restraints, designed to slow the amendatory process to discourage imprudent measures, make the process inappropriate for the urgent need at hand. It might take years to muster the exacting vote required to put a proposal on the ballot, and if the proposal should be rejected by the people, the provision in paragraph 7 quoted above
If, however, the Legislature does not initiate the convention process by April 1, 1965, then the Court will call for argument as to whether another process may be used, the time
relating to submission of proposals “to effect the same or substantially the same change” might present serious difficulties.
And finally the amendatory process is inappropriate because it cannot give the people the free range of decision which they should have with respect to the organic structure of government. The power to propose a solution may be the virtual power to control it. Cf. Rivera-Cruz v. Gray, supra, 104 So. 2d, at p. 503. As a practical matter, the electorate cannot easily reject a proposal when some proposal must be adopted and it cannot know whether an even less palatable one will follow. The practical power to control the solution would be in the hands of the very branch of government to be affected by it.
A Constitutional Convention could effectively thrash out the many subjects which the present exigency projects. For example, shall there be a bicameral or a unicameral legislature? How large shall the house or houses be? What shall be the terms of office and shall the terms be staggered? Shall elections be by districts, and if so, shall the districts be related to existing county lines? Should a member be elected from a single district or should there be multi-member districts? What provisions can be adopted to deal with the threat of gerrymandering if the districts are to be fixed from time to time? Should the task of periodic reapportionment rest with the Legislature or rest with some other agency, either initially or in the event the Legislature does not act? Should there be a right in the people to initiate changes affecting the Legislature so that the principal‘s inherent power to change need not depend upon the agent‘s willingness to submit a proposal?
We have referred to sundry topics, not to suggest that all of them are worthy of resolution by the people, but rather to indicate their range is so great that a convention of delegates specially chosen for the role is the sole, suitable machinery to propose a plan to complete the legislative article of the Constitution.
The judgment under review is reversed and a judgment will be entered in this Court:
- Adjudging the Legislature to be apportioned in violation of the equal protection clause of the Constitution of the United States;
- Enjoining any further elections under the apportionment basis now provided by law;
- Declaring that the legislative power may not be exercised after the second Tuesday in January 1966 except by legislators elected not later than November 1965 under a basis consonant with the equal protection clause;
- Adjudging that the Legislature may by statute provide an interim basis, consonant with the equal protection clause, for the election of the legislators as provided in (3) above;
- Declaring that proposals to amend the State Constitution to comply with the equal protection clause may be submitted by a Constitutional Convention called by the Legislature, the delegates to which Convention shall be apportioned according to population; and reserving the question whether proposals to amend or revise the State Constitution may be submitted by another process by the Legislature elected in compliance with (3) and (4) above;
- Adjudging that the legislators elected pursuant to (3) and (4) above may hold office for a period not extending beyond the second Tuesday in January 1968 if the Legislature initiates the convention process by April 1, 1965;
- Ordering that if the Legislature does not initiate the convention process by April 1, 1965, there be brought on for argument at such time as the Court may fix, the question reserved in (5) above and the impact of the use of another process upon the terms of office of the legislators to be elected in November 1965;
- Reserving jurisdiction in this cause to determine applications for such further or different relief as may be appropri-
ate and to determine such further relevant controversies as may arise.
No costs.
HANEMAN, J. (concurring). There comes a time in the career of practically every judge when he must embrace a theory of law to which he does not personally subscribe. This occurs by virtue of the establishment thereof by some superior authority. Under our judicial system this is entirely proper because such a mandate is the basis and the essence of the stability of our law. That, however, is not to say that he is rendered mute by force of superior precedents. He continues to have the privilege, and on occasion the obligation, to expose his respectful disagreement while at the same time acceding to administer the letter of the law as so directed. In Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, 530 (1964), the United States Supreme Court said that “a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.” To paraphrase, I conceive that although I am bound by a construction of the United States Constitution by the United States Supreme Court, my oath and my office as a Justice of the New Jersey Supreme Court require that I express my disagreement where such construction, in my opinion, impinges upon the constitutional rights of the citizens of this State. I now find myself in that position. I therefore vote with the balance of this Court in the matter sub judice because of the interpretation of that document by the United States Supreme Court as delineated in Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964).
“But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes.”
Accordingly, while I shall not repeat what has been said by Justices Harlan and Stewart, I shall briefly sketch the historical background out of which our present Legislature emerged and the reasons underlying the adoption of such a legislative device.
The province of New Jersey was included as part of a land grant to the Duke of York by Charles II in 1664 and the area now comprising New Jersey was almost immediately deeded by him to Lord Berkeley and Sir George Carteret. Although the legal right of these two proprietors to assume governmental authority was far from clear, they proceeded to draw up a constitution for the province in 1665. This document became known as “The Concessions and Agreements of the Lords Proprietors.” It provided for a governor, a council of from six to twelve men appointed by the governor, and a general assembly composed of two deputies popularly elected by the freeholders of each town. The legislative council and assembly sat as two separate bodies, thus establishing the
On April 17, 1702 Queen Anne accepted the voluntary surrender of the right of government by deed of the proprietors of East and West Jersey. The two Jerseys were thus reunited to form a single royal province with a single government. Queen Anne gave her “Instructions” to Lord Cornbury, governor of the colony, on November 16, 1702 for the establishment of a governmental system. The legislature consisted of the governor, a council appointed by the governor and drawn from East and West Jersey in equal numbers, and an Assembly of 24 members, 10 chosen at large from each division and two each from Perth Amboy and Burlington, the late capitals
“It would be misleading to depict the Jerseys as one general community. In fact, there were sharp contrasts between East and West Jersey, contrasts which have not disappeared even today. The sources of settlement of the two provinces were quite distinct; each had its own government, its own proprietary land system. The fact that each had a separate existence for some three decades was not going to be erased instantly when the provinces were united in 1702. The population of East Jersey was much more varied than that of West Jersey. In the former province the people were compactly settled in townships, whereas in West Jersey the farms were widely dispersed. East Jersey was much more seriously divided by internal quarrels, arising out of the peculiar complexities of the dispute between the early townsmen, with their quit rent obligations, and the proprietors. There was no comparable source of contention in West Jersey. No small factor in emphasizing the cleavage between the two divisions was the growth of the cities of New York and Philadelphia, which rapidly drew within their respective orbits the adjacent sections of New Jersey. Certainly an important and continuing heritage from the proprietary period is the distinction that we presently observe between what we now call North Jersey and South Jersey.”
This balancing of legislative power between the two divisions was bottomed upon the desire that neither should be able to force its will upon the other by the mere fortuity of numerical superiority—each division having enjoyed some degree of limited sovereignty before 1702, and being composed of peoples with differing economic interests, religious affiliations and national origins. Thus was established the precedent for legislative representation based upon territory as distinguished from population. This colonially-instituted mode of appor-
In May of 1776 the citizens of New Jersey elected delegates to the third Provincial Congress. The body convened at Burlington on June 10, 1776, and on June 21 of that year resolved to adopt a new Constitution which was thereupon drafted and became effective on July 2, 1776. It is noteworthy that this was some eleven years before the adoption of the United States Constitution. New Jersey became the third colony to adopt a state constitution, and its new government was practically a replica of that of colonial days. The legislature consisted of two houses, all the members of which were elected annually. The upper house, known as the “Legislative Council,” consisted of one member from each county. The lower house, designated the “General Assembly,” consisted of three members from each county, with the proviso
“* * * that if a majority of the representatives of this province, in council and general assembly convened, shall, at any time or times hereafter, judge it equitable and proper to add to or diminish the number or proportion of the members of the assembly for any county or counties in this colony, then, and in such case, the same may, on the principles of more equal representation, be lawfully done, anything in this charter to the contrary notwithstanding; * * *”
Thus was re-established, this time in a written constitution, a bicameral legislature representative of political subdivisions, one house of which had one representative from each county, and the second a number depending upon the population of the several counties. Unfortunately, there are no records extant of the debates and discussions preceding the adoption of this article. However, it is recognized that the framers were much influenced by John Adams, who outlined his specifications for such a charter in correspondence with Jonathan Dickinson Sergeant, the principal author of our Constitution. In one of these letters Adams stated: “A single assembly is liable to all the vices, follies, and frailties of an individual * * *” IV Adams, C. F., The Works of John Adams 202.
“Written for the purpose of exhibiting some of the more prominent errors and omissions of the Constitution of New Jersey . . . and to prove the necessity of calling a convention, for revision and amendment.”
Many suggestions for change were made by him, including the manner of apportioning legislative representatives. He stated:
“The equal representation of the people, has been secured upon the ratio, either of taxation or numbers. Massachusetts, New York and Pennsylvania, have introduced a precise and invariable rule of apportionment, which adjusts itself by an easy application to every possible variation of the electoral body; and the people of New Jersey; will never be secure against partial and unjust deviation from the true principle of representation; namely, equal and determinate portions of the taxable inhabitants, until it is made an article of the general constitution. This is a fair, a rational, and practicable principle: if every district is represented in a ratio to its taxable population, no wrong is done; it is conformable to the acknowledged principles of legitimate government. True it is, that hitherto the people of New Jersey have not been represented in the legislature, according to their constituent capacity, but according to certain geographical descriptions; the counties have been represented by equal delegations, without regard to the comparative state of population and property. This is a gross violation of the first maxim of a republican, representative government, which dictates equality in the choice of those who are to make laws, and administer the public functions.” Id., at p. 53.
Influenced by these articles, the legislature authorized a referendum on the question of whether to call a constitutional convention. The people voted against a revision and thus rejected, inter alia, such a legislative change.
In 1827 an unofficial convention of prominent men from nine counties met in Trenton and produced a memorial asking the legislature to call a convention. The memorial never
In 1844, pursuant to an act of the legislature, a constitutional convention was called. During the extensive debates upon the article providing for future amendment, the fear that the numerical majority of the population would overbear the minority to the latter‘s detriment was continually stressed. In the discussions on the creation of the legislature the principal controversy again concerned the protection of minorities. A proposal was made to divide the State into districts to consist of counties adjacent to each other and as nearly equal in population as possible, with each district being entitled to an equal number of senators. The debate upon this issue waxed acrimonious: the fear for the minorities again being stressed and emphasized. The suggestion was ultimately rejected by a vote of 37 to 15 in favor of a Senate composed of one senator from each county, with many delegates from populous sections joining in the vote against the defeated proposal and in favor of a provision which allotted one senator to each county and created a general assembly “* * * apportioned among the said counties as nearly as may be according to the number of their inhabitants. * * * provided, that each county shall at all times be entitled to one member; and the whole number of members shall never exceed sixty.”
In his annual message to the legislative session of 1873, Governor Joel Parker suggested the calling of a constitutional convention or commission. As a result, the legislature created a commission in 1873 which considered many proposed changes, one of which was the reorganization of the Senate on the basis of senatorial districts of equal population. Although the population of New Jersey had increased some two and a half fold between 1840 and 1870, largely in the urban centers, this suggested change was not adopted by the legislature. In
Constitutional commissions were established in the years 1881, 1894 and 1905 but none of these resulted in a change of the legislative composition from that provided in the
“Shall the one hundred sixty-eighth Legislature be authorized to agree, by a majority of the members elected to each of the two houses, upon a revised Constitution for the State, which revised Constitution shall include the provisions of Article I of the present Constitution, commonly known as ‘The Bill of Rights,’ and shall include provision for a Senate composed of one Senator from each county and a General Assembly composed of not more than sixty members apportioned among the counties as provided by the present Constitution so that each county shall at all times be entitled to one member, and to submit the same as a whole and in such manner as said Legislature shall prescribe to the people, for their approval and ratification or rejection as a whole, at the general election to be held in the year one thousand nine hundred and forty-four?”
The electorate voted favorably, and in accordance with this mandate the revised instrument was submitted at the election of November 7, 1944 but was rejected by the electorate. Although public pre-election opposition was directed at a number of facets of the proposed instrument, there was practically
By L. 1947, c. 8, a Constitutional Convention was again authorized. This statute provided in part:
“The constitutional convention shall prepare and agree upon a new State Constitution, revising, altering or reforming the present Constitution in such part or parts and in such manner as the convention shall deem in the public interest; provided, however, that the convention in no event agree upon, propose or submit to vote of the people, either separately or included among other provisions, any provision for change in the present territorial limits of the respective counties, or any provision for legislative representation other than provision for a Senate composed of one Senator from each county and a General Assembly composed of not more than sixty members apportioned among the counties according to population so that each county shall at all times be entitled to at least one member, chosen for, and elected by the legal voters of, the respective counties.”
The Convention prepared a new Constitution which was adopted by a referendum on November 4, 1947.
It has been argued that the 1947 referendum is not truly demonstrative of a preference by the electorate for a bicameral legislature as presently composed because of the restriction statutorily imposed upon the Convention. The fact remains, however, that the voters of the entire State, including those of the metropolitan areas, did approve this system in that year when they were free, if sentiment was opposed thereto, to reject the entire instrument as they did in 1944 because of objections to other individual provisions.
Thus it is seen that from early colonial days New Jersey has had a legislative body comparable in form to that now being attacked. From 1776 (eleven years before the adoption of the
The reasons for the protection of minorities against the overpowering and ofttimes hasty and ill-considered actions of the majority continue to have vitality. Metropolitan, and more recently suburban, populations have increased more rapidly than the rural populations. In the latter sections, consisting of separate counties, the economic life of the community revolves around agriculture, fishing and resort activities—each one of which contributes substantial and important incomes to the State. The problems of these divisions requiring legislative attention are frequently entirely different and sometimes antagonistic to those of the metropolitan and suburban sections where commerce, industry and finance are of primary concern. Nor are the requisites of municipal and county control identical. The United States Supreme Court has expressed the concern in Reynolds v. Sims, supra, 377 U. S., at p. 576, 84 S. Ct., at p. 1389, 12 L. Ed. 2d, at pp. 535-536, that:
“Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis, stemming directly from the failure to accord adequate overall legislative representation to all of the State‘s citizens on a nondiscriminatory basis.”
Who is to say that so-called “frustration of the majority” is not justice for the minority—who is to say that a given measure of state-wide concern is or was defeated solely because of the objection of a minority in the Legislature which does not represent a majority of voters in the State at large—or who is to determine that the “majority will” is beneficial for the State at large?
The fallacy with the proposition that legislation desired by the legislators representing the more populous sections is representative of the will of a majority of the public of the State is that it does not follow that such legislators express the will of a combination of the minority in their own election districts and those of similar views residing in the less populous areas. The combination of the latter could well total a state-wide majority, and it is possible for a legislative majority to actually express the sentiments of a state-wide minority.
In Reynolds, supra, 377 U. S., at p. 565, 84 S. Ct., at p. 1383, 12 L. Ed. 2d, at p. 529, the court stated:
“Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State‘s legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.”
With the premise itself there can be no dispute, nor in fact is the conclusion, as stated, subject to reasonable debate. How-
To say that ours is a representative government is not to say that minorities should be subjected to the possible tyrannical will of a majority nor that protection against such a contingency is not an important requisite of such government.
Personal experience in the House of Assembly has demonstrated to me the preoccupation of legislators from more populous sections with their problems at the expense and sometimes in utter disregard of the serious concerns of the less populous areas. But for the restraining effect of the Senate this would frequently have resulted in a complete frustration of the minority. Surely the danger to the rights of minorities which is inherent in such a system surpasses the partial restraint imposed on the will of the majority. Any other conclusion ignores the fact that “a citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm,” Reynolds, supra, 377 U. S., at p. 568, 84 S. Ct., at p. 1384, 12 L. Ed. 2d, at p. 531, since that minority would not receive any meaningful representation and thus be deprived of any voice in government.
The legislative composition of New Jersey had its genesis eleven years before the adoption of the
For reversal—Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN—7.
For affirmance—None.
CHRISTOPHER JACKMAN, ET AL., PLAINTIFFS-APPELLANTS, v. JOHN M. BODINE, ET AL., DEFENDANTS-RESPONDENTS.
Argued December 14, 1964—Decided December 15, 1964.
Notes
| Atlantic | 160,880 | Mercer | 266,392 |
| Bergen | 780,255 | Middlesex | 433,856 |
| Burlington | 224,499 | Monmouth | 334,401 |
| Camden | 392,035 | Morris | 261,620 |
| Cape May | 48,555 | Ocean | 108,241 |
| Cumberland | 106,850 | Passaic | 406,618 |
| Essex | 923,545 | Salem | 58,711 |
| Gloucester | 134,840 | Somerset | 143,913 |
| Hudson | 610,734 | Sussex | 49,255 |
| Hunterdon | 54,107 | Union | 504,255 |
| Warren | 63,220 |
Our Constitution authorizes the Legislature only to propose “Any specific amendment or amendments,”
The purpose of an amendment is to alter, by change or supplement, an existing expression of the people‘s will. Ordinarily it is not im-