Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.
[145 NJSuper Page 469] This is the third challenge to the validity of Revised Ordinance 2:14-1 of the City of Newark*fn1 which
generally requires all of its officers and employees to reside within the city limits as a condition for appointment and for continued employment. The Chancery Division, in an opinion reported at 137 N.J. Super. 570 (1975), declared the ordinance to be unconstitutional.*fn2 The city then appealed.
The ordinance survived the first two attacks almost unscathed. The initial assault was leveled in Kennedy v. Newark , 29 N.J. 178 (1959), by 15 nonresident employees essentially on three grounds, one of which was that the city was estopped to enforce the ordinance because of an alleged policy of nonenforcement. We need not be concerned with the other two, since they are not involved in the present appeal.
The second unsuccessful attempt to overturn the ordinance came in Abrahams v. Civil Service Comm'n , 65 N.J. 61 (1974).*fn3 This action was bottomed primarily on the assertion that the requirement of continued residence within the city limits was in violation of the Federal Constitution protecting the right of travel, as interpreted in Shapiro v. Thompson , 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). As already indicated, this attack was likewise repulsed by the city.
The opinion of the trial judge in the case at bar includes a recital of the entire provisions of the subject ordinance. However, special attention is called to the portions thereof which authorize certain municipal officials, "for good cause
shown," to permit employees to reside outside the city limits where their health or the nature of their employment necessitates or requires such exceptions. The ordinance also provided for employees being excused by said officials where "special circumstances exist justifying residence outside of the city limits." Abrahams, supra , declared the "special circumstances" exception to be void for lack of any guiding standard.
The trial judge declared the ordinance to be totally unconstitutional as in violation of the Equal Protection Clause of the Fourteenth Amendment, using the following language:
It is therefore concluded that the denial of equal protection found to result from the statutory exemption for police and firemen (N.J.S.A. 40A:14-122.1 and N.J.S.A. 40A:14-9.1, respectively) from the Newark Residency Ordinance is singly and collectively compounded by the pattern of selective enforcement implicit in the city's (1) studied policy of nonenforcement which has prevailed throughout the history of the ordinance; (2) its continued refusal to attempt enforcement of the requirement against employees of its municipal agencies; (3) its continued refusal to attempt enforcement against its officials and their assistants enumerated in N.J.S.A. 40A:9-1; (4) its continuing practice of hiring nonresidents, and (5) by exercising its claimed power to suspend the requirement under standards no less arbitrary than are expressed as "intelligent allowances for unusual cases" despite the invalidation by our highest court of the "special circumstances" exception for reasons of vagueness.
Both Kennedy and Abrahams, supra , affirmed the power of a municipality to require public employees to be residents. Judge Conford, for the court in Abrahams , (65 N.J. at 72) said: "There are any number of conceivable rational warrants in municipal public policy to justify vetoing the desire of the municipal employee to live outside the city while working for it." He then quoted from Ector v. City of Torrance , 10 Cal. 3d 129, 109 Cal. Rptr. 849, 852, 514 P. 2d 433, 436 (D. Ct. App. 1974), cert. den. 415 U.S. 935, 94 S. Ct. 1451, 39 L. Ed. 2d 493 (1974), which listed the following reasons:
Among the governmental purposes cited in these decisions or now urged by amici curiae are the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city's conditions and by a feeling of greater personal stake in the city's progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees' salaries. [65 N.J. at 72]
The Equal Protection Clause does not prohibit mere inequality or difference in treatment. Dandridge v. Williams , 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). And a classification must be upheld under any reasonable set of facts unless there is a showing of invidious discrimination. Morey v. Doud , 354 U.S. 457, 463, 77 S. Ct. 1344, 1 L. Ed. 2d 1485, 1490 (1957); Kenny v. Byrne , 144 N.J. Super. 243 (App. Div. 1976). Concomitant with the presumption of validity of enactments, including ordinances, is a presumption that the classification contained therein in its relationship to other enactments is reasonable and valid. Dandridge and Morey , both supra; Lindsley v. Natural Carbonic Gas Company , 220 U.S. 61, 78, 31 S. Ct. 337, 55 L. Ed. 369, 377 (1910).
If a classification has some "reasonable basis," it does not offend the Constitution simply because it is not made with mathematical nicety or because in practice it results in some inequality. Lindsley, supra. "The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago , 228 U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730, 734 (1913). If any state of facts reasonably may be conceived to justify it, a statutory discrimination will not be set aside. McGowan v. Maryland , 366 U.S. 420, 425, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393, 399 (1961).
The trial judge found that notwithstanding the foregoing principles, the distinction in classifications between those
employed by the city who were residents and those employed by the city who were nonresidents did not rest on some ground of difference having a fair and substantial relation to the object of the ordinance. Dandridge v. Williams and ...