[87 NJSuper Page 279] These matters have come before the court upon motions for summary judgment to declare Title 40, chapter 20, article 3 of the New Jersey Revised Statutes unconstitutional on the ground that the said statutes are violative of the equal protection clause of the Fourteenth Amendment
of the United States Constitution. The "one man-one vote" principle laid down in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2 d 506 (1964), is now sought to be applied to the County Boards of Chosen Freeholders of Gloucester and Cumberland Counties. Counsel for the County of Salem has made a motion to intervene in the Cumberland County suit, which motion is hereby granted.
There being no genuine issue of material fact in these cases, these matters are properly before this court for summary judgment under R.R. 4:58.
The three counties involved in these suits are all counties of the third class and each is governed by a large board of freeholders. Plaintiffs contend that a large board of freeholders is unconstitutional and that this case is controlled by the recent decisions in Jackman v. Bodine, 43 N.J. 453 (1964); Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2 d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2 d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2 d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2 d 620 (1964); and Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2 d 632 (1964).
In view of these decisions, this court is of the opinion that the boards of freeholders of these three counties are clearly malapportioned and that the afore-mentioned statutes of New Jersey are unconstitutional. It could not seriously be contended otherwise.
"* * * The county board of chosen freeholders is the legislature of the county. It exercises the corporate powers of the county and has the management and control of county property and its financial interests. * * *" (at p. 478)
Since the basic principle of representative government, as stated in the Reynolds case, supra, is that the weight of a citizen's vote cannot depend on where he lives, the composition of the boards of freeholders should comply with the Fourteenth Amendment. A county is generally considered a political subdivision or agency of the State. Township of North Bergen v. Usher, 142 N.J. Eq. 479 (Ch. 1948); Bergen County v. Port of New York Authority, 32 N.J. 303 (1960); Godfrey v. McGann, 37 N.J. 28 (1962). Among its powers are the power to tax, R.S. 40:23-7; the power to appropriate, N.J.S.A. 40A:4-10, and the power to penalize for violations of its resolutions, R.S. 40:24-2. If the State Legislature must conform to the principle of equal protection, it is logical that the "county legislature" should conform to the same principle.
It has been urged that the State of New Jersey is an indispensable party to these proceedings under R.R. 4:37-2, which reads in part:
"When the validity of a statute, executive order, franchise or constitutional provision of this State is drawn in question in any action to which the State or an officer or agency thereof is not a party, the court shall require notice to be given the Attorney General of the State; and the State shall upon timely application be permitted to intervene in the action. * * *"
In view of the fact that (1) in each case the county clerks and the directors of each board, in their elected positions, have been made parties defendant and are here represented by counsel; (2) I am advised that the Attorney General, though not served with process, is cognizant of the actions, and (3) the statement of Governor Hughes in refusing to sign Senate Bill No. 60 indicates that he, too, is fully aware of the pendency of these suits, the court does not deem the failure to name the Attorney General as a party defendant a fatal defect or one which should delay the court in deciding these ...