Jackman v. Bodine

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 ; Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656 , 84 S. Ct. 1429 , 12 L. Ed. 2d 595; Davis v. Mann, 377 77. 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).

*480 My rationalization proceeds in much the same fashion as does that of Justices Harlan and Stewart in their excellent and, to my mind, unanswerable dissents in Reynolds v. Sims, supra, and WMCA, Inc. v. Lomenzo, supra, respectively. Additionally, I base my conclusion upon the singular history of this State’s legislative composition and the reasons which have undergirded that composition from early colonial days. My vote in favor of the constitutionality of our presently existing legislative scheme upon such grounds is precluded, however, by the generalization of the United States Supreme Court in Reynolds, supra, which prejudges a conclusion bottomed upon such an approach. The court there stated (377 U. S., at pp. 579-580, 84 S. Ct., at p. 1391, 12 L. Ed. 2d, at pp. 537-538) :

“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 Iiarlan 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 *481 bicameral system. Lord Berkeley sold bis interest in the granted lands in 16 74, and New Jersey was divided into the provinces of East Jersey and West Jersey, the boundary between the two being established by the famous Quintipartite Deed of July 1, 1676. The proprietors of West Jersey, a Quaker undertaking under the leadership of William Penn, formulated and adopted a document known as “The Concessions and Agreements of the Proprietors, Freeholders, and Inhabitants of West New Jersey in America,” which provided that when the province had been divided into “tenths” there would be ten delegates from each subdivision elected by the proprietors, freeholders and inhabitants of each of the respective tenths. There was no provision for an upper house. The only limitations placed on this legislature were that all acts must be consonant with English law and must not conflict with the Concessions. Sir George Carteret, administrator of the province of East Jersey, died in 1680, and in 1682 his interest in East Jersey was purchased from his widow and eight trustees by William Penn and eleven associates. These twelve proprietors adopted the “Fundamental Concessions” under which the administration of public affairs was vested in 24 proprietors or their proxies and 144 representatives of the people. Although East Jersey was thus acquired by Quakers its population was and continued to be more heterogeneous than West Jersey, the European Quakers generally seeking-refuge in West Jersey.

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, gov-* ernor 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 *482 of East and West Jersey respectively. The legislature met alternately in Perth Amboy and Burlington. After 1705 each of the then seven counties was allotted two assemblymen, as were the twin capitals and the town of Salem. With the creation of new counties as population expanded the composition of the assembly was altered. By 1775 there were 13 counties, each with two assemblymen and two members each from Burlington and Perth Amboy. The council continued as originally created. The reason for this sectional representation can be gleaned from the following account in McCormick, New Jersey from Colony to Stale, pp. 56-57 (1964) :

“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 Xork 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 *483 tionment has been perpetuated in the equal representation of counties in one house of the legislature under our State Constitutions of 1776, 1844 and 1947.

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.

*484 That our citizens were alert to the effect of a bicameral legislature consisting of two houses representative of county and population, respectively, and intentionally continued that form of government is demonstrated by the many discussions which followed the adoption of the original Constitution. As early as 1799 William Griffith, writing under the pen name of Bumenes, published a series of articles

“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 Tork 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 *485 came out of legislative committee. As stated by Bebout, The Making of the New Jersey Constitution, p. XXXVIII: “The-truth seems to be that despite the words of editors, theorists and elder statesmen there never was an overwhelming demand on the part of the people for revision of the old constitution.”

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.” Constitution of 1844, Art. IY, Sec. III(l).

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 *486 1876, however, 28 other suggested amendments were adopted by referendum.

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 1844 Constitution. In the decade of the 1940’s the movement for constitutional revision flourished. Pursuant to L. 1941, J. Res. 2, a “Commission on Revision of the New Jersey Constitution” was appointed. This Commission prepared a draft of a new Constitution which was submitted to the legislature with the suggestion that the draft be submitted to the people as a whole. Again, the legislative article remained as it was written in the Constitution of 1844. The proposed revision was referred to a joint committee of the Senate and General Assembly which held public hearings to ascertain public sentiment on the proposal. A majority of the joint committee recommended that “no action for change in the New Jersey Constitution be taken until after the termination of the present war.” By L. 1943, c. 217, the legislature, however, authorized a referendum upon the question:

“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 *487 no objection to the legislative section. It is generally conceded that this provision played no part in the vote for rejection.

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 hy 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 United States Constitution) to 1947, the citizens of New Jersey have continued to approve and to repulse attacks upon a bicameral legislature, one house of which is apportioned to the several counties regardless of their individual population, and the other to the several counties proportionally to their individual population. The roots of this form of government are planted in the differences in the colonial prov *488 inces of East and West Jersey, each to a great extent haying at one time been sovereign entities. Such a form of government was stimulated by the desire to protect the rights and interests of minorities, whether they be doctrinal, religious, economic or territorial, and so to prevent control of government by force of numbers. The policy so born has continued for 188 years. Nor have the sound reasons for a two-house legislature diminished with the passage of time. The deleterious impact of the equalitarian principle of “one man one vote” as pronounced by the United States Supreme Court, which concerned our citizens in the early days of statehood, is as viable today as then.

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 nondiseriminatory basis.”

*489 Although we have had similar generalized statements presented on oral argument in the matter sub judice, counsel has failed to specify particular instances. To my knowledge, our system has not resulted in frustration of worthwhile statewide measures by small county legislators acting by and for themselves. However, if this argument has substance it is as applicable to the federal system which was patterned after the New Jersey Constitution of 1776. Surely it cannot be said that tire federal system is at an impasse, or that compromise and concession are not there important stabilizing influences.

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 majorify 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 tliat 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 *490 ever, to conclude that the Senate in our State bas absolute control of tbe legislative process is to ignore the potency of the Assembly elected on a proportional basis and theoretically representative of a majority of the public. To deny the less populated counties, whose problems are dissimilar to those of the more populous counties, the braking effect of a bicameral legislature is in effect to create a unicameral legislature elected by the public at large.

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 United States Constitution. The provinces of East and West Jersey enjoyed a limited degree of sovereignty before 1702, as did the counties thereafter. New Jersey was admittedly a sovereign state when it joined in the compact of 1787 and surely did not then agree even implicitly to abandon its legislative composition, a composition after which the United States Constitution was itself patterned. The entire State has continued to flourish under the present legislative distribution.

*491 It is impossible to conclude tbat had the Fourteenth Amendment been understood to make our legislative body unconstitutional, the advocates of proportional senatorial districts (who were so vocal in the Convention of 1844) would not have, subsequent to 1868, urged this as a ground for constitutional revision. Nor is it conceivable that this same thesis would not have been advanced to the constitutional revision commission of 1873 by proponents of proportional Senate representation. The fact that this basis was not argued by the many brilliant minds of this State interested in constitutional revision over the span of 79 years between 1868 and 1947 demonstrates that the construction of the Fourteenth Amendment now adopted is in reality an extension never intended. The Constitution of this State has now in effect been amended without the consent of its citizens, in a manner not provided by our Constitution but rather by a judicial fiat of the United States Supreme Court — and this by a construction inconsistent with history, logic, republican principles and the sovereignty of our State.

For reversal ■ — • Chief Justice WeiNTRaub, and Justices JACOBS, FRANCIS, Peoctoe, Hall, SchettiNO and HANE-MAN — -7.

For affirmance — None.