To hold -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Francis, J. Proctor, J. (concurring). Proctor and Schettino, JJ., concurring in result.
Plaintiffs are citizens and taxpayers of this State and have their residence in the County of Monmouth. In this action they seek a declaration (1) that the 1941 General Assembly Apportionment Act, L. 1941, c. 310, N.J.S.A. 52:10-1, is violative of Article IV, Section III, paragraph 1, of the 1947 Constitution, and (2) that the County of Monmouth is entitled to elect three members of the General Assembly rather than the two allotted by the 1941 Act. The complaint refers to the fact that in every year in which members of the General Assembly are to be elected, the defendant Secretary of State under N.J.S.A. 19:12-1 is obliged to direct and cause to be delivered to the clerk of the county and to the county board of elections wherein any such election is to be held, a notice stating that such officers are to be elected. It is alleged further that upon receipt of the notice the defendant county clerks have the duty, by virtue of N.J.S.A. 19:12-3, to cause a copy thereof certified to be true and correct to be delivered to the clerk of each municipality in the county not later than the fiftieth day preceding the primary election for the general election. By way of ancillary relief, plaintiffs pray for the issuance of an injunction restraining the Secretary of State and the named county clerks from issuing, delivering and acting upon the notice of election.
The trial court dismissed the complaint on the ground that decision as to need for reapportionment as well as the formula to be applied in the event of reapportionment is committed by the Constitution exclusively to the legislative branch of the government. The matter is before us on our own certification.
Article IV, Section III, par. 1, of the 1947 Constitution provides, in much the same form as did the Constitution of 1844:
"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." (Emphasis added.)
Subsequent to the 1940 census and on the basis of the number of inhabitants of each county disclosed thereby, the Legislature, by chapter 310, L. 1941, reapportioned the Assembly membership as follows:
"Atlantic county, two members;
Bergen county, six members;
Burlington county, one member;
Camden county, three members;
Cape May county, one member;
Cumberland county, one member;
Essex county, twelve members;
Gloucester county, one member;
Hudson county, nine members;
Hunterdon county, one member;
Mercer county, three members;
Middlesex county, three members;
Monmouth county, two members;
Morris county, two members;
Ocean county, one member;
Passaic county, four members;
Salem county, one member;
Somerset county, one member;
Sussex county, one member;
Union county, four members;
Warren county, one member."
The 1950 census of New Jersey was certified by the United States Bureau of the Census on February 5, 1952, and was filed by the Governor with the Secretary of State on February 11, 1952. Despite the revelation from the figures that substantial relative changes in the population of various counties had occurred since 1940, during the succeeding eight years the Legislature failed to heed the Constitutional mandate that the Assembly shall be apportioned "at the first session" after the census. Although many bills have been introduced for the purpose, the 1941 act still controls the number of assemblymen to be elected from each county. As has been indicated, the imperative language of the present Constitution appears in substantially the same form as that of 1844, and the parties are in agreement that for the first time in the intervening 100 years there has been a failure to discharge the duty to apportion after each census. See, New Jersey Legislative Reapportionment (Nov. 1957), prepared and published by the Law and Legislative Reference Bureau, Division of the State Library, Archives and History.
Plaintiffs do not claim that the 1941 act was invalid at the time of adoption. They contend, however, that the 1950 census shows such a change in the number of inhabitants in the various counties that a different distribution of Assembly seats, some counties being entitled to more and some less than presently specified, is required by the Constitution. And they urge that these changes, considered in the light of the Constitutional mandate, have caused the 1941 legislation to become invalid. Cf. Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S. Ct. 486, 79 L. Ed. 949 (1935); Jones v. Freeman, 193 Okl. 554, 146 P. 2 d 564 (1944), appeal dismissed and certiorari denied 322 U.S. 717, 64 S. Ct. 1288, 88 L. Ed. 1558 (1943).
Effectuation of the prescription for allocation of seats among the counties "as nearly as may be" according to the number of their inhabitants, with the maximum number of seats fixed at 60, requires mathematical calculations. If the total population of the State, as shown by the 1950 census, were divided by 60 and the quotient could be divided evenly into the population of each county, the task would be simple. Unfortunately such a perfect result is unlikely, and so the Legislature has the difficult task of distributing whole seats to the extent indicated by the population division (subject to the order of the organic law that each county must have at least one seat) and then allocating the balance in accordance with some treatment of the remaining fractions which will conform with the "as nearly as may be" apportionment mandate.
The record and the briefs indicate that there are five well known modern mathematical formulas ...