The appeal was filed in this court on April 24, 1963, before the effective date of an amendment to section 21 of the Law Against Discrimination, N.J.S.A. 18:25-1 et seq. By that change the Superior Court, Appellate Division, instead of the County Court, now has the appellate jurisdiction. The matter remains here, however, pursuant to an order dated July 7, 1963.
Mrs. Delia David's complaint charging the appellants with an act of discrimination on December 13, 1962, under the act in its then form, was heard in a proceeding conducted by a hearing examiner for the Commissioner of Education in the Division on Civil Rights.
On a record which included about 400 pages of transcribed testimony, the Commissioner adopted the hearing examiner's findings of fact and conclusions of law. In particular, it was determined that appellants denied Mrs. David, in violation of N.J.S.A. 18:25-12(g), the opportunity to apply for tenancy in one of their apartments because she was a Negress. An order by the Commissioner issued on April 19, 1963. It directed appellants to cease and desist from discrimination and it required them to follow designated rental procedures for a period of one year. Affirmative relief to Mrs. David was specifically withheld, however. She and her family had taken physical possession of the apartment which, through the time of the Division hearing, they continued to occupy without permission of the owner. The hearing examiner found that this so-called "sit-in" constituted self-help which "thwarted" the power of the Division to grant her the direct relief of enforced tenancy.
Appellants attacked the agency determination on the levels of fact and law. They contend there was no evidence to sustain the ultimate factual finding below. They challenge the constitutionality of the Law Against Discrimination on three grounds:
First, the statute attempts to create a court in the Executive Branch of the State Government contrary to Article III of the 1947 Constitution;
Second, it effects a taking of private property, contrary to Article I thereof; and
Third, it unlawfully discriminates between owners and renters of real property.
There is a cross-appeal by Mrs. David from the Commissioner's order for the reason that it did not compel a rental to her. In this aspect of the controversy, an appeal is now pending before the Appellate Division from a judgment ejecting the Davids. It was agreed on the argument of the present matter that the cross-appeal would not be pressed here, but without prejudice to the David position in the other appeal.
By agreement of the parties the appeal to this court is being treated as a trial de novo on the record made in the Division, even though the superseded section of the law did not expressly direct a new adjudication of the facts. N.J.S.A. 18:25-21 now amended by L. 1963, c. 40 on May 21, 1963.
The report of the hearing examiner covers 40 pages. It contains an exceptionally thorough analysis of the testimony. I have studied the testimonial transcript and the following findings of fact are made independently of his.
Mrs. David learned from a newspaper advertisement that a six-room apartment was for rent at 2 Dempsey Avenue in Edgewater, Bergen County. She went to see it on Thursday, December 13, 1962. She met the superintendent, a Mrs. Edith Dagle (referred to as Mrs. Alfred Dagle in the complaint) at the premises. The latter told Mrs. David there was a prospective tenant who had come the night before and who would bring her husband to see the place that evening. Mrs. David offered to leave a check for $200 for one month's rent in advance and a month's rent as security. This was declined by Mrs. Dagle, who said she would have to consult the owner. Mrs. David left her telephone number.
Fifteen or twenty minutes after Mrs. David went out, a Mrs. Elliott and another white woman arrived. They asked to look at the apartment. Mrs. Dagle showed them through. They were told about the prospect who had appeared the night before and they were invited to give something to hold the apartment in case of her return. Mrs. Elliott deposited $10 for which she was issued a receipt. Mrs. Dagle did not mention Mrs. David.
What Mrs. Dagle did not know was that she had been drawn into a prearranged plan of action initiated by the Bergen County Chapter of the Congress of Racial Equality. A C.O.R.E. party was outside the apartment when Mrs. David made her rental application. Mrs. Elliott's subsequent entry was in the role of a "tester" -- "to see if there is any difference in what is told to the two applicants."
There is no need to search the record for Mrs. Dagle's personal position in the situation. She made it clear in her testimony:
"Q. Now, Mrs. Dagle, am I correct in saying that your testimony so far is that on Wednesday evening, if that lady had offered you a deposit, you would have accepted it?
Q. And that you did accept a deposit from Mrs. Elliott?
Q. And that you didn't accept a deposit from Mrs. David?
Q. And that you might have accepted a deposit from Mrs. David if she were white?
"Q. And you told us, Mrs. Dagle, that if Mrs. David had in fact not been colored, you might have accepted or probably would have accepted the deposit?
Q. And you did not want to accept on your own responsibility, to accept a colored person as tenant; is that correct?
Mrs. Dagle testified that after accepting the Elliott deposit she telephoned Mrs. David to state that the apartment had been rented to someone else. Mrs. Dagle said this was done by her own initiative and without instruction. There can be no doubt that Mrs. Dagle, as an employee of the owner, did discriminate against Mrs. David because of her color "in the terms, conditions or privileges of the * * * rental * * * of * * * real property," contrary to N.J.S.A. 18:25-12(g)(2).
The question is whether a case has been made out against the other defendants. It is clear from the proofs that defendant Henry C. Senger, Jr., although serving as secretary-treasurer of the corporate defendant, Vesta Company, was its spokesman vis a vis Mrs. Dagle in the matter of rentals. Mrs. Dagle testified that she ...