No. A-109: For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. No. A-126: For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
This opinion involves two separate appeals. Both concern the constitutionality of the housing accommodation sections of the New Jersey Law Against Discrimination (hereafter law), N.J.S.A. 18:25-1 et seq.
The first case had its inception in a complaint filed by Delia David, a Negro, in the Division on Civil Rights, alleging that respondents Vesta Company and its agents discriminated against her in the rental of an apartment in a privately financed apartment house owned and operated by the Vesta Company. After a hearing conducted by the Division on Civil Rights which resulted in a determination that an unlawful discrimination had occurred, an order was entered directing the respondents to cease and desist their discrimination. The respondents appealed to the Bergen County Court, Law Division. The county court dismissed the complaint, holding that N.J.S.A. 18:25-5(n) was an unconstitutional denial of equal protection because it created an impermissible classification between those types of privately financed housing subject to the law and those which are excluded. David v. Vesta Co., 81 N.J. Super. 593 (Cty. Ct. 1963). On the appeal by David and the Division on Civil Rights, the Appellate Division permitted the intervention of Vincent L. Harris and Nirza Harris, Colonial Heights, Inc., Tobias Agency, Inc., and River Heights, Inc.
The Harrises, who are Negroes, had filed a complaint against Colonial Heights and its exclusive rental agent, Tobias Agency, in the Division on Civil Rights. The complaint alleged that Tobias Agency and Colonial Heights (which in September 1963 was the owner of a large tract of land upon which it was building a garden apartment complex of about 400 dwelling units) had discriminated against the Harrises in the rental of an apartment. The county court decision in David v. Vesta Co. preceded the scheduled hearing of this complaint and the Division on Civil Rights therefore consented to the intervention of Colonial Heights. River Heights owns a recently constructed garden apartment house
development and alleges that it has been charged with racial discrimination in the rental of an apartment. The court also permitted the New Jersey Committee Against Discrimination In Housing and eight other organizations to appear as amici curiae. While the appeal was pending in the Appellate Division, David and Vesta Company reached a settlement and are no longer parties. We certified the matter on our own motion before argument in the Appellate Division. Before us the Division on Civil Rights and the Committee Against Discrimination In Housing advocate the constitutionality of the law, while Colonial Heights, Tobias Agency, and River Heights challenge its constitutionality. The Harrises have joined in the briefs filed by the Division and by the Committee.
The plaintiffs in the second case, New Jersey Home Builders Association, New Jersey Association of Real Estate Boards, and Joseph V. Montoro, instituted a suit in the Superior Court, Chancery Division, under the Uniform Declaratory Judgment Act, N.J.S. 2A:16-50 et seq., challenging the constitutionality of the law. The trial court found the statute to be constitutional for the reasons expressed in its opinion in New Jersey Home Builders Ass'n v. Div. on Civil Rights, 81 N.J. Super. 243 (Ch. Div. 1963).*fn1 Home Builders appealed, and we certified the matter on our own motion before argument in the Appellate Division.
The challengers of the law contend that certain sections deprive them of their constitutional rights to due process of law and to the equal protection of the laws. The pertinent sections are N.J.S.A. 18:25-4, which provides:
"All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry or age, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right."
And N.J.S.A. 18:25-5(n), which provides:
"The term 'real property' includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, provided however that, except as to publicly assisted housing accommodations, the provisions of this act shall not apply (1) to the sale or rental of a dwelling, or of a portion hereof, containing accommodations for not more than 3 families, one of which is maintained by the owner at the time of sale or rental as the household of his family, or; (2) to the sale or rental of a dwelling, or a portion thereof, containing accommodations for not more than 2 families, except, however, such dwellings shall be included within the term 'real property' when they are part of a group of 10 or more dwelling houses constructed or to be constructed on land that is contiguous (exclusive of public streets) and are offered for sale or rental by a person who owns or has owned or otherwise controls or has controlled the sale or rental of such group of dwelling houses, or; (3) to the rental, by the owner or occupant of a one-family accommodation in which he or members of his family reside, of a room or rooms in such accommodation to another person or persons. Nothing herein contained shall be construed to bar any religious or denominational institution or organization, or any organization, operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, in the sale, lease or rental of real property, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained."
Colonial Heights, Tobias Agency, and Home Builders contend that the above sections deny them due process of law. They point out that Article I of the New Jersey Constitution of 1947 provides that among the natural and unalienable rights of all persons are those of acquiring, possessing and
protecting property, and that under the Fourteenth Amendment the States are precluded from depriving any person of property without due process of law. Under these constitutional principles, they urge that one person has as much of a right to dispose of his real property as does another person to acquire it. They contend that these countervailing constitutional rights are equal, and therefore the State has no power to disturb the balance by legislation. The fallacy of this argument is the invalid assumption that these private property rights exist in a vacuum and are absolute in nature. Private property rights are not absolute. They are always subject to the reasonable exercise of the police power. As was said by the United States Supreme Court in Nebbia v. People of State of New York, 291 U.S. 502, 523, 54 S. Ct. 505, 510, 78 L. Ed. 940, 948-949 (1934):
"Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest."
In the State's exercise of its police power it has placed myriad restrictions upon the property owner's right to use land as he chooses. For example, the law of nuisance, easements by necessity, the division of the benefits of water, sanitary regulations, building codes, zoning ordinances and statutes, and planning regulations, have all been recognized as legitimate restrictions on the use of private property. See Powell, "The Relationship Between Property Rights and Civil Rights," 15 Hastings L.J. 135, 140-149 (1963). More pertinent to the issue before us, the rule against perpetuities, the rule against certain restraints on the alienation of land, the rule prohibiting a testator from devising his property subject
to a condition which violates the public welfare,*fn2 and rent ceiling laws are all examples of legitimate police power restrictions upon the right of a private property owner to dispose of his property as he chooses. Ibid. In short, the private property owner has the right to use and dispose of his property as he chooses only so long as his action is not contrary to the general welfare.
The New Jersey Constitution, Article I, par. 5, forbids the denial of any civil right by discrimination on the basis of religious principles, race, color, ancestry or national origin. The law now before us declares that it is an exercise of the police power in fulfillment of that constitutional guarantee of civil rights.*fn3 The law also sets forth that the Legislature finds and declares the discrimination proscribed therein to be a political, economic and social evil.*fn4 That finding undoubtedly comports with reality. The deleterious effect upon our society of discrimination against members of minorities has been so convincingly and abundantly demonstrated that it is now a matter of common knowledge.
The question remains whether regulation of the sale or rental of private housing is a valid means toward elimination of the evils of such discrimination. Jones v. Haridor
Realty Corp., 37 N.J. 384 (1962), settled the question of the legitimacy of prohibiting such discrimination in publicly assisted private housing. In so doing, Justice Francis, speaking for a unanimous court, rejected the property owner's due process argument, saying:
"Discrimination against Negroes in the sale and rental of housing accommodations results in inadequate housing for them and in segregation in housing. They are thus compelled in large numbers to live in circumscribed areas under substandard, unhealthy, unsanitary and crowded living conditions. These conditions in turn produce disease, increased mortality, unstable family life, moral laxity, crime, delinquency, risk of fire, loss of tax revenue and intergroup tensions. See Levitt [ Levitt & Sons, Inc. v. Division Against Discrimination in the State Dept. of Education ], supra, 31 N.J. , at p. 531; Berman v. Parker, 348 U.S. 26, 32, 75 S. Ct. 98, 99 L. Ed. 27 (1954); 5 N.Y. City Charter & Code § W41-1.0; Report, United States Commission on Civil Rights, Housing, supra, 1-4; Report, United States Commission on Civil Rights, 1959, p. 534. Standards of sanitation have to be sacrificed because strict enforcement of building and health codes will simply make a great many people homeless. See 'State Action,' 14 Stan. L. Rev. 3, 47 (1961). All of these things imperil the tranquillity of a community. In addition, substandard and segregated housing seriously complicates the problem of public school integration. Manifestly, in their totality these conditions reveal an evil which it is within the competence of the lawmakers to correct." Id., 37 N.J., at p. 392
The Legislature in 1961 amended the Law to extend its coverage to include certain nonpublicly assisted private housing. L. 1961, c. 106, p. 683. This extension was not under review in Jones, supra. However, the language of the Court in that case is equally applicable to the extended coverage which is now under review. The extension of the statute is but another step toward the accomplishment of the legitimate legislative objective. The statute here is certainly as reasonable a regulation of private property toward the achievement of a highly desirable public goal as are planning and zoning laws. The latter have long been upheld when attacked as taking property without due process of law. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).
We conclude that the law, in forbidding discrimination because of race, creed, color, national origin or ancestry in the sale or rental of privately financed private housing of the types covered by the law, is a reasonable exercise of the police power, and is not a taking of property without due process of law.