For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[45 NJ Page 373] On or about October 17 and 18, 1963 defendant Cruz, trading as Cruz Construction Company, was engaged in laying a trunk line for the Pompton Lakes municipal sewer system. The work was a public project performed at public expense under a contract between Cruz and the Borough of Pompton Lakes, New Jersey. On those dates Cruz
employed 14 Portuguese aliens as laborers on the project. Although they were not United States citizens, they were legally in this country and held alien registration cards. A complaint was filed in the Municipal Court by the Department of Labor and Industry charging violation of R.S. 34:9-1, which prohibits employment of aliens on public works. Cruz was found guilty on each of the 14 counts and fined $1,400 plus costs. The statute fixes a penalty of $100 for each violation. The County Court affirmed the conviction, and on our own motion we certified the ensuing appeal before it was argued in the Appellate Division.
On this appeal defendant claims the statute transgresses the equal protection clause of the Fourteenth Amendment of the Federal Constitution, and Art. 1, para. 5 of the New Jersey Constitution of 1947. He contends further that R.S. 34:9-1 was impliedly repealed by subsequent inconsistent legislation which we shall discuss hereafter. We find it unnecessary to deal with the constitutional problems because we are satisfied the contention of implied repealer is sound and requires a reversal of the convictions. But on the issue of constitutionality, compare People v. Crane, 214 N.Y. 154, 108 N.E. 427 (Ct. App. 1915), affirmed 239 U.S. 195, 36 S. Ct. 85, 60 L. Ed. 218 (1915), and Heim v. McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed. 206 (1915), with Takahashi v. Fish & Game Commission, 334 U.S. 410, 419-420, 68 S. Ct. 1138, 92 L. Ed. 1478, 1487 (1948), and see "Constitutionality of Restrictions on Aliens' Right to Work," 57 Colum. L. Rev. 1012 (1957); Note, "1947-1948 Term of the Supreme Court: The Alien's Right to Work," 49 Colum. L. Rev. 257 (1949); "National Power to Control State Discrimination Against Foreign Goods and Persons: A Study in Federalism," 12 Stan. L. Rev. 355 (1960); Agreement with Portugal on passport visa fees, Feb. 24, 1950 , 1 U.S.T. & O.I.A. 461, T.I.A.S. No. 2084.
The statute, R.S. 34:9-1, which provided the basis for defendant's prosecution was adopted in 1899. L. 1899, c. 202. So far as pertinent, it provides:
"It shall be unlawful for the state or any county, municipality, board, committee, commission or officer thereof, officer, body or organization having charge of any public work * * *, whether the same be a building, excavation, pipe-laying, bridge or dock-building, sewer or drainage construction, road building, paving, or any other form or kind of public work, which shall be undertaken and done at public expense or for any person or corporation, to employ as a mechanic or laborer upon such public work or construction, or any part thereof, any person who is not at the time of such employment a citizen of the United States * * *."
Penalty for violation is fixed at $100.
It has been said that the evil at which statutes of this nature were aimed originally was the importation of foreign labor to work for wages amounting to peonage. See Bureau of Statistics of Labor and Industries of New Jersey Seventh Ann. Rep. (1884), c. iii, "Importation of Foreign Labor Under Contract," pp. 274-281; also, c. iv, "Immigration and the Labor Problem," pp. 284-296. Such immigration practice was not only considered detrimental to the dignity and freedom of aliens as human beings, but the competitive force it produced was deemed inimical to the welfare of the laboring class of citizens of this country.
Since enactment the statute has remained on the books in its original form. We have been unable to find any reported cases where it has been considered, applied or attacked. In 1931, however, its harshness was ameliorated but without any specific reference to the statute. L. 1931, c. 27 and c. 402 provided that in the performance of any form or kind of public work preference in employment "shall be given to citizens of the State of New Jersey [who have resided and been domiciled therein continuously for a period of one year]." The bracketed portion was added by c. 402. But both chapters authorized employment of persons "other than citizens of the State of New Jersey * * * when such citizens are not available." L. 1934, c. 92 added the requirement that the one year domicile in New Jersey be immediately prior to such employment. The statute as amended in 1934 is still in force, appearing as R.S. 34:9-2.
Thus it may be said on the basis of the legislative mosaic, that at the end of 1934 it was no longer unlawful to employ an alien on a public work or construction project if citizens of the State were not available.
The suggestion has been made that the purpose of the 1931 and 1934 acts was to give preference in such employment to citizens of New Jersey, and thereafter to permit employment of citizens of other states, but not to alter the 1899 prohibition (R.S. 34:9-1, supra) against employment of aliens. We consider that to be an unduly restrictive analysis. Obviously if the lawmakers' intent was simply to secure a preference for New Jersey citizens over citizens of sister states, it would have been a simple matter to say so. Instead, upon creating the preference for our citizens, it provided that "persons" other than citizens of New Jersey may be employed when such citizens are not available. "Persons" is a word of broad connotation; in context it may include citizens and aliens. Restriction on the right of a person lawfully in this country to ...