The opinion of the court was delivered by: ADAMS
Although no evidentiary hearing was held, it was conceded that numerous instances of severe hardship have developed because of the enforcement of the residency requirement. From the affidavits which have been filed it appears that many police and firemen regard local housing in highly industrialized and urbanized areas as either too highly priced or practically uninhabitable. Some have been prompted to move away from their respective municipalities for personal reasons, such as caring for sick relatives who for reasons of health are unable to move to the locality. Domestic problems appear to arise occasionally as a result of the conflict between a wife's understandable regard for the welfare of her family and the husband's obligation and devotion to duty that binds him to a particular locale. The New Jersey courts have, in addition, determined that dual residency will not satisfy the requirement of N.J.S.A. 40:47-5. "Residency" within the statute is more than nominal domicile; it must be the place which the policeman or fireman regards as his home -- the place at which his family lives. Mercadante v. City of Paterson, 111 N.J. Super. 35, 266 A. 2d 611 (Chan. Div. 1970), aff'd 58 N.J. 112, 275 A. 2d 440 (1971). Finally, the Court is not presented with isolated or dramatized examples of hardship. We understand from the affidavits submitted that perhaps one of three New Jersey police and firemen are now residing in violation of N.J.S.A. 40:47-5, and that the plaintiffs before us are truly representative of the class which they purport to represent.
We then must consider our jurisdiction as a three-judge panel to determine the constitutionality of N.J.S.A. 40:47-5. This Court was convened under 28 U.S.C. § 2281, which provides that the enforcement, operation or execution of a State statute may not be enjoined on the ground of its unconstitutionality unless application for injunctive relief is heard and determined by a three-judge district court.
While a municipal ordinance standing alone is not a "statute" within the meaning of 28 U.S.C. § 2281, Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656 (1967); Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967); Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967); Ex parte Collins, 277 U.S. 565, 48 S. Ct. 585, 72 L. Ed. 990 (1928), if ordinances are in fact a state-wide application of law embodied in or authorized by a state statute, this requirement of 28 U.S.C. § 2281 is satisfied. City of Cleveland v. United States, 323 U.S. 329, 65 S. Ct. 280, 89 L. Ed. 274 (1945). Clearly, N.J.S.A. 40:47-5 and the many ordinances enacted thereunder comprise a "compendious summary of various enactments" by which the State of New Jersey has given its sanction to the residency requirement. A.F. of L. v. Watson, 327 U.S. 582, 592, 66 S. Ct. 761, 90 L. Ed. 873 (1946). Whether the statute and local ordinances enacted thereunder in fact represent the implementation of a truly state-wide policy or scheme is a determination which a federal court must make by examining the practical aspects of the operation of such laws. Simon v. Landry, 359 F.2d 67 (5th Cir. 1966), cert. denied, 385 U.S. 838, 87 S. Ct. 86, 17 L. Ed. 2d 72 (1966); Hyden v. Baker, 286 F. Supp. 475 (M.D. Tenn. 1968); Israel v. City Rent and Rehabilitation Administration, 285 F. Supp. 908 (S.D.N.Y. 1968). Although the residency rule is not necessarily applicable in every New Jersey municipality,
this Court is satisfied that its operation and enforcement is sufficiently state-wide to justify its classification as a "statute" within the meaning of 28 U.S.C. § 2281, thereby vesting jurisdiction to decide this case in a three-judge court.
Even though we have the power to adjudicate the matter before us, the question whether we should exercise that power or abstain, merits a brief discussion. Beginning with the case of R.R. Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), the Supreme Court has articulated the various factors which govern the abstention doctrine. Generally, a federal court should, in its discretion, abstain when a decision based on state law is necessary to the disposition of the case, and when the state question involves unclear state law or a matter of paramount interest to the state. See e.g., Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); R.R. Comm'n v. Pullman Co., supra. The state law involved in this case has been twice sustained and definitively interpreted by the New Jersey courts. Mercadante v. City of Paterson, 111 N.J. Super. 35, 266 A. 2d 611 (1970) aff'd 58 N.J. 112, 275 A. 2d 440 (1971); Kennedy v. City of Newark, 29 N.J. 178, 148 A. 2d 473 (1959). Further, the question here is not a matter of "paramount interest" to the state as that term has been interpreted in Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 594, 88 S. Ct. 1753, 20 L. Ed. 2d 835 (1968). Under these circumstances, then, abstention would not be proper and we proceed to the merits.
B. The Constitutional Issue
The claims asserted by the plaintiffs rest basically on alleged denials of their right to equal protection and their right to travel as guaranteed by the Constitution. The equal protection argument attacks the state-enforced classification which differentiates between resident and non-resident police and firemen, while the right to travel contention assails the power of the state to prohibit policemen and firemen from moving if they are to retain their jobs.
The traditional test applied to determine whether a state statute comports with the Equal Protection Clause of the Fourteenth Amendment has been stated on many occasions by the Supreme Court: "The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective * * *. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961), citing Kotch v. Board of River Port Pilot Comm'rs., 330 U.S. 552, 67 S. Ct. 910, 91 L. Ed. 1093 (1947); Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 55 S. Ct. 538, 79 L. Ed. 1070 (1935); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369 (1911); Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 19 S. Ct. 609, 43 L. Ed. 909 (1899).
Recently, however, the Supreme Court has made fairly clear that when the differentiation adversely affects other fundamental constitutional rights, the test to be applied is much more stringent. The statute may be upheld only if the state is able to demonstrate a compelling interest in maintaining the difference in treatment between the classes. Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960).
Our initial inquiry, therefore, will be to determine whether the State of New Jersey must demonstrate a reasonable basis for the classification or a compelling interest in it. For this purpose, the discussion should begin with Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the first Supreme Court case to recognize the existence of a right to travel independent of the Commerce Clause of the Constitution. ...