On appeal from the Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[2 NJ Page 564] This is an appeal by the City of East Orange, its Mayor and the members of its City Council, from a judgment of the Chancery Division of the Superior Court
dismissing the complaint in this cause as against the defendants Charles R. Erdman, Jr., Commissioner of the Department of Economic Development of New Jersey, and William T. Vanderlipp, Deputy Administrator of the Department of Economic Development, and granting final judgment in favor of the plaintiffs and against the appellants on the plaintiffs' motion for judgment on the pleadings. The appeal was taken to the Appellate Division of the Superior Court but it has been certified by this court on its own motion as part of a program of clearing the appellate dockets before the summer recess.
Pursuant to R.S. 55:14G-1 et seq., the City of East Orange acquired four separate sites on South Arlington Avenue, North Clinton Street, Elmwood Avenue and Rhode Island Avenue and commenced the construction of multiple dwelling units thereon primarily for veterans. Under the terms of this legislation known as the Veterans Emergency Housing Act and by contracts entered into between the city and the State, the State is required to advance approximately 55% of the cost of the projects and upon their completion the city is required to lease the projects to the State for a period of five years. The contracts further provide that the city appoint a "Projects Manager" for the projects which are to be managed and administered by the city in keeping with the regulations promulgated by the Commissioner of the Department of Economic Development; should the city fail or refuse to manage and administer the projects properly, the Commissioner "may, upon ten days' written notice to the municipality, appoint another as agent * * *." The Commissioner has promulgated regulations, among others, establishing priorities for tenants based entirely on the degree of distress of the individual applicant and his veteran or nonveteran status. These regulations provide that "there shall be no discrimination against any person because of race, creed, color, national origin or ancestry." There is a similar provision in the statute, R.S. 55:14G-21.
The complaint herein was filed on November 23, 1948, by nine Negro veterans of World War II setting forth their service
and honorable discharge, their residence in East Orange, their compliance with the formal requirements of the statutes and regulations with respect to this type of public housing, their need of housing and their timely applications for accommodations in these particular housing projects. In addition the complaint alleged that the project at South Arlington Avenue had been completed and that tenants had been and were being selected for said project, and that in the selection of tenants for occupancy of the South Arlington Avenue project, as well as those located on Elmwood and Rhode Island Avenues, the defendants had "adopted a policy, custom and usage of refusing to admit qualified negro applicants * * * solely because of race or color and have refused to act upon or consider their applications for admission to" the three projects. The complaint charged a violation of various pertinent constitutional, statutory and regulatory provisions as to discrimination and sought a restraint against all of the defendants from denying to the plaintiffs and other qualified Negro applicants "the equal opportunity to be considered * * * solely because of the race and color of such applicants, from making any designation because of race, creed, color, national origin or ancestry in the leasing of any units * * *." Thereafter the defendant city and the municipal officials filed an answer which did not materially controvert any of the allegations contained in the complaint and admitted the leasing of 26 units in the South Arlington Avenue project to white tenants and their policy to assign the Negro veterans who first qualified and were accepted as tenants to the North Clinton Street project. They denied that it was their policy that when the North Clinton Street project had been fully occupied they would thereafter exclude the plaintiffs or others of the Negro race from the other projects, provided such persons qualified for admission in accordance with the schedule of priorities promulgated by the Department of Economic Development.
A motion was thereafter made by the plaintiffs for judgment on the pleadings. The defendant State officials moved to strike the complaint as to them on the grounds that it did
not state a cause of action as to them, that the complaint did not charge them with any wrongdoing, and that full adequate and complete relief might be awarded the plaintiffs against the other defendants. The Chancery Division struck the complaint as to the defendant State officials and entered judgment on the pleadings in favor of the plaintiffs, declaring that the defendant municipality and its officials had denied the plaintiffs consideration for housing accommodations by reason of their color and that such action denied the plaintiffs the equal protection of the laws contrary to the Fourteenth Amendment and further constituted discrimination against them contrary to the provisions of R.S. 55:14G-21, and restrained the said defendants from denying to the plaintiffs or any other persons otherwise qualified consideration for occupancy at any one of the four projects on account of race, creed, color, national origin or ancestry, from segregating the plaintiffs or any other persons in any one or more of said projects because of their race, creed, color, national origin or ancestry, from postponing or delaying the admission of plaintiffs or any other qualified persons to said housing accommodations on such grounds, and from discriminating in any manner against the plaintiffs or any other qualified persons in the renting of said accommodations. The City of East Orange and its named officials have appealed from these determinations.
At the oral argument in this court counsel for the appellants stated that it was not their intention to segregate the applicants for apartments whose applications had been accepted by the Veterans' Permanent Housing Committee of the City Council and the East Orange Veterans' Selection Committee, the latter appointed to assist in the process of screening the 750 applicants for apartments. He further informed the court that these two committees had approved the applications of 18 Negro veterans and of 74 white veterans. In the latter group are included the 26 applicants referred to in the complaint as being tenants of the South Arlington Avenue project ...