For affirmance: Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Mountain. For reversal: None. The opinion of the Court was delivered by Mountain, J.
Plaintiffs challenge the validity of a rule promulgated by the Division on Civil Rights. The regulation, which seeks to implement the Law Against Discrimination, N.J.S.A. 10:5-1 et seq., is said to conflict wtih provisions of the statute itself and further to have been adopted in an improper fashion.
On April 9, 1970, the Division on Civil Rights announced in the New Jersey Register, 2 N.J.R. 36, that it proposed to adopt a Multiple Dwelling Reporting Rule,*fn1 the text of which was set forth in compliance with the Administrative Procedure Act, N.J.S.A. 52:14B-4. A hearing was duly held and subsequently, on October 8, 1970, the Regulation, now somewhat modified from the form in which it had been originally published, was officially adopted. Thereupon plaintiffs initiated this action in lieu of prerogative writ. Although commenced in the Law Division, since the suit sought to review the validity of a rule promulgated by a state administrative agency, it was transferred to the Appellate Division.
R. 2:2-3(a)(2). While it was there pending unheard, we granted the motion of the Attorney-General for certification. R. 2:12-2(a).
The Rule requires all owners of multiple dwellings having twenty-five or more units to file an annual report with the Division on Civil Rights supplying information as to the racial designation of tenants and applicants, as well as rental turn-overs, rental recruiting techniques, and the size and rental rates of apartments. N.J.A.C. 13:10-2. As published, the rule is accompanied by an instruction sheet and a reporting form designed to facilitate the submission of the required information. During the course of oral argument, we were advised that the Division was in the process of drafting revised instructions to assist landlords in complying with the Rule and filling out the reporting form. These have since been completed and published. They add to the original instructions additional provisions indicating the manner in which racial and ethnic identity of tenants and applicants is to be determined. Four categories are designated: "black," "Spanish surnamed," "white," and "other." It is recommended that identification be made as far as possible by visual observation. Inquiry is discouraged and to be resorted to only if no other method of classification is possible. Upon the rare occasions when inquiry proves necessary, the inquirer must inform the tenant or applicant that the information sought is required by a Rule of the Division on Civil Rights.
Plaintiffs basically contend that by requiring this compilation and submission of racial statistics the Rule offends the very statute it seeks to enforce. The Law Against Discrimination provides that:
It shall be * * * an unlawful discrimination:
g. For the owner, lessee, sublessee, assignee or managing agent of, or other person having the right of ownership or possession of or the right to sell, rent, lease, assign, or sublease any real property or part or portion thereof, or any agent or employee of any of these:
(3) To print, publish, circulate, issue, display, post or mail, or cause to be printed, published, circulated, issued, displayed, posted or mailed any statement, advertisement, publication or sign, or to use any form of application for the purchase, rental, lease, assignment or sublease of any real property or part or portion thereof, or to make any record or inquiry in connection with the prospective purchase, rental, lease, assignment, or sublease of any real property, or part or portion thereof which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, ancestry, marital status or sex or any intent to make any such limitation, specification or discrimination, and the production of any such statement, advertisement, publicity, sign, form of application, record, or inquiry purporting to be made by any such person shall be presumptive evidence in any action that the same was authorized by such person; provided, however, that nothing contained in this subsection shall be construed to bar any person from refusing to sell, rent, lease, assign or sublease or from advertising or recording a qualification as to sex for any room, apartment, flat in a dwelling or residential facility which is planned exclusively for and occupied by individuals of one sex to any individual of the exclusively opposite sex on the basis of sex. [ N.J.S.A. 10:5-12]
Plaintiffs' argument may be framed thus: the statute forbids an owner of real property, such as a landlord, to make or record with respect to tenants or applicants, any specification as to race, creed, color, national origin, ancestry, marital status or sex, whereas the rule requires such record and specification. Since a rule must be deemed invalid which directs a course of conduct explicitly forbidden by the statute which the regulation seeks to implement, Cole Nat. Corp. v. State Bd. of Examiners, 57 N.J. 227, 231 (1970); In re Weston, 36 N.J. 258, 263-264 (1961), cert. den. 369 U.S. 864, 82 S. Ct. 1029, 8 L. Ed. 2d 84 (1962), plaintiffs insist that this rule must fall.
Thus we turn to the statute which, it is argued, forbids adoption of the Multiple Dwelling Reporting Rule. This law was originally adopted in 1945 (L. 1945, c. 169) and was designed to eliminate practices of discrimination. By a later amendment (L. 1951, c. 64), the Legislature specifically found and declared such practices to be a matter of concern to the government of the ...