PASHMAN, J. (dissenting).

I would declare the residence ordinance unconstitutional on two grounds: (1) it is an infringement upon the right to travel unsupported by a sufficiently compelling State interest to justify the restriction and (2) it is a violation of the equal protection clause. I therefore dissent from the majority opinion.

I

The enactment prescribes a continuing residence requirement in the community as a condition of employment. Its validity was sustained in Kennedy v. City of Newark, 29 N.J. 178 (1959). In balancing personal liberty against the power to enact an ordinance requiring residence in an employer-city, this Court invoked the rational basis test.

* * * If there is a rational basis for a residence requirement in furtherance of the public welfare, the constitutional issue must be resolved in favor of the legislative power to ordain it. * * * ( 29 N.J. at 183).

It was thought that the government could quite rationally and reasonably conclude that employees would perform their respective tasks more conscientiously if they had an attachment to the community which exceeded mere employment. Employees would be more motivated and would have greater incentive to perform their duties well if they lived in the community. They could not leave the city's problems behind them after working hours. While this reasoning is still sound, the standard for evaluating its validity has been altered.

Subsequently to Kennedy v. City of Newark, the United States Supreme Court held that "any classification which serves to penalize the exercise of [a constitutional] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615 (1969). We are now called upon to reconsider the Kennedy decision in light of the test set forth in Shapiro.

New Jersey has recognized the compelling state interest test for purposes of the Federal Constitution and has embraced the doctrine for State purposes. Justice Jacobs stated in Worden v. Mercer County Board of Elections, 61 N.J. 325 , 346 (1972):

* * * Since it is so patently sound and so just in its consequences, we adopt the compelling state interest test in its broadest aspects, not only for compliance with the Federal Constitution but also for purposes of our own State Constitution and legislation * * *.

Newark claims that we have since retreated from our endorsement of the compelling state interest test in Worden v. Mercer County Board of Elections. It was noted that in Robinson, et al. v. Cahill, et al., 62 N.J. 473 (1973), we expressed our dissatisfaction with the rather elusive concepts of "fundamental" rights and "compelling" interests. While our treatment of the equal protection question presented therein embraced the terms of those concepts, the Court did express some reluctance in accepting the overall concept for State constitutional purposes. 62 N.J. at 491. Chief Justice Weintraub continued:

In passing we note briefly the reason why we are not prepared to accept that concept for State constitutional purposes . . . But we have not found helpful the concept of a "fundamental" right. No one has successfully defined the term for this purpose. Even the proposition . . . that a right is "fundamental" if it is explicitly or implicitly guaranteed in the Constitution, is immediately vulnerable, for the right to acquire and hold property is guaranteed in the Federal and State Constitutions, and surely that right is not a likely candidate for such preferred treatment. And if a right is somehow found to be "fundamental," there remains the question as to what State interest is "compelling" and there, too, we find little, if any, light. Mechanical approaches to the delicate problem of judicial intervention under either the equal protection or the due process clauses may only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial. * * * ( 62 N.J. at 491-492) (Emphasis added).

In Robinson, the Court was justifiably hesitant to ground its holding upon the equal protection clause. As noted in deciding that case, "the equal protection clause may be unmanageable if it is called upon to supply categorical answers to the vast area of human needs, choosing those which must be met and a single basis upon which the State must act." 62 N.J. at 492. The Court went on to hold the then practice of financing public education with local property taxes as violative of the State constitutional mandate for a "thorough and efficient system of free public schools." 62 N.J. at 513. The Court was not content to ground an analysis of so complex and pervasive an issue as the financing of public education solely on the relatively imprecise standards of the compelling interest test.

While the quoted passage in Robinson v. Cahill indicates some dissatisfaction with ambiguities inherent in the compelling state interest test, it does not adopt a new standard, but sets out what implicitly was the ultimate judgment called for: weighing the nature of the restraint against the purpose served. Judged under either the traditional compelling state interest test or the test suggested in Robinson v. Cahill, the Newark Residence Ordinance cannot be upheld as to the broad inclusion of all employees being required to live within the City.

* * * We do not say that there are no employees whose residence near their place of duty may not be important enough to justify a restriction upon their place of residence but if such restrictions are permissible as to some this does not justify the broad and all inclusive requirement that all employees live within the city limits. * * * ( Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789, 791 (Sup.Ct. 1971)).

Shapiro v. Thompson, supra, invalidated durational residence requirements for welfare aid eligibility. They were held to violate the equal protection clause of the Fourteenth Amendment by creating two classes of bona fide residents solely on the basis of length of residence.

* * * On the basis of this sole difference the first class [those who have resided a year or more] is granted and the second class [those who have resided less than a year] is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist — food, shelter, and other necessities of life. * * * ( 394 U.S. at 627, 89 S.Ct. at 1327, 22 L.Ed. 2d at 611).

Deterrence of "in-migration" was an essential feature of the residence requirement, the validity of which could not be justified as protecting the fiscal integrity of assistance programs, distinguishing between new and old residents on the basis of tax contributions made to the community, facilitating planning the budget, providing an objective test of residence, minimizing the possibility of fraud or encouraging early entry into the labor force. In practical terms, the waiting period excluded the poor from the relevant jurisdiction. This exclusion was an impermissible restriction on the right to travel.

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.

* * * * * * * *

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. * * * ( 394 U.S. at 629, 631, 89 S.Ct. at 1329, 22 L.Ed.2d at 612, 613).

It is not permissible to "wall welfare recipients out." Demiragh v. DeVos, 476 F.2d 403, 405-406 (2 Cir. 1973). See Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941).

Shapiro involved a durational rather than a continuing residence requirement. The former is a condition precedent for obtaining the desired benefit, while the latter creates a condition which often may be met upon obtaining the benefit or within some time period thereafter, but is a condition of one's retention of the benefit or position. The court specifically disavowed any intention to judge the validity of other durational or continuing residence requirements.

We imply no view of the validity of waiting period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or on the other, may not be penalties upon the exercise of the constitutional right of interstate travel. ( 394 U.S. at 638, n. 21, 89 S.Ct. at 1333, 22 L.Ed.2d at 617, n. 21).

The right to travel and equal protection clause have been the basis of invalidating durational residency requirements in the context of eligibility for public housing, King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2 Cir.), cert. denied 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1971), Cole v. Housing Authority of City of Newport, 435 F.2d 807 (1 Cir. 1970); exercising one's right to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); preference given applications for civil service positions, Eggert v. City of Seattle, 81 Wn.2d 840, 505 P.2d 801 (Sup.Ct. 1973); and an indigent's right to receive non-emergency medical care, Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).

As in the other durational residence requirement cases, the discrimination in Memorial Hospital v. Maricopa County, supra, was between new and old bona fide residents. The case arose from the denial of a transfer from and reimbursement for services to a private county hospital for its care of an indigent who had moved to Maricopa County, Arizona, from New Mexico. The requirement must be justified by a compelling state interest since the classification impinged on the "constitutionally guaranteed right of interstate travel." 415 U.S. at 254, 94 S.Ct. at 1080, 39 L.Ed.2d at 312. While not dealing directly with the interstate-intrastate travel distinction, the court noted that such a distinction would not affect the requirement before it.

* * * Appellant Evaro has been effectively penalized for his interstate migration, although this was accomplished under the guise of a county residence requirement. What would be unconstitutional if done directly by the State can no more readily be accomplished by a county at the State's direction. * * * ( 415 U.S. at 256, 94 S.Ct. at 1081, 39 L.Ed.2d at 313).

The Court relied on the Arizona Supreme Court's construction of the statute as applicable to intrastate as well as interstate migrants, yet noted the inconsistency of applying the residence requirement to intrastate migrants while being prohibited from doing so for interstate migrants. Memorial Hospital v. Maricopa County, 415 U.S. at 256, n. 9, 94 S.Ct. at 1081, n. 9, 39 L.Ed.2d at 313-314, n. 9.

In any event, the right to travel encompasses intrastate as well as interstate travel.

It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state. * * * [Footnote omitted]. ( King v. New Rochelle Municipal Housing Authority, supra, 442 F.2d at 648).

Kent v. Dulles, 357 U.S. 116, 125-126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204, 1210 (1958); Krzewinski v. Kugler, 338 F. Supp. 492, 498 (D.N.J. 1972); Wellford v. Battaglia, 343 F. Supp. 143, 147-148 (D. Del. 1972), aff'd, 485 F.2d 1151 (3 Cir. 1973); Karp v. Collins, 310 F. Supp. 627 , 633-634 (D.N.J. 1970); Donnelly v. City of Manchester, supra, 274 A.2d at 791; Eggert v. City of Seattle, 81 Wn.2d 840, 505 P.2d 801, 804 (Sup.Ct. 1973). The right to live where one chooses is inherently part of any right to travel. See Donnelly v. City of Manchester, supra, 274 A. 2d at 791.

The right to travel is penalized as effectively in the case now before this Court as in those cases invoking durational residence requirements. The requirement is a clear deterrent to any city employee desiring to reside beyond the city limits. The ordinance forbids such movement on penalty of loss of employment in violation of both the State and Federal Constitutions. It is evident that residence requirements have an inhibiting effect on interstate movement, if only to the extent that nonresidents are precluded from seeking employment with the city unless they seek also to reside therein. "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] amendment to secure." Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131, 135 (1915). "Any limitation on the opportunity for employment impedes the achievement of economic security, which is essential for the pursuit of life, liberty and happiness. . . ." Purdy Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 86, 456 P.2d 645, 654 (Sup.Ct. 1969).

It is my conclusion that the Newark ordinance seriously interferes with the constitutional right to travel inter- and intrastate which leads me to strictly scrutinize the State's interest. The majority fails to perceive the potential deterrent to migrating and resettling which the residence ordinance represents to both those presently in the city's employ and those seeking employment with the city. The mere fact that the ordinance herein prescribes a continuing, rather than a durational, residence requirement does not exempt it from the potential of unconstitutionally interfering with the right to travel. See generally, Goldstein, "Residency Requirements For Municipal Employees: Denial Of A Right To Commute?", 7 U. San Fran. L. Rev. 508, 526-540 (1973).

It has been noted that "durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly." Dunn v. Blumstein, supra, 405 U.S. at 338, 92 S.Ct. at 1001, 31 L.Ed.2d at 282. The Court noted that "appropriately defined and uniformly applied requirements of bona fide residence may," in the case of voters, "be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny." 405 U.S. at 343-344, 92 S.Ct. at 1004, 31 L.Ed.2d at 285. This Court has already recognized the "political philosophy of local representation of the citizens . . ." in upholding a continuing residence requirement for ward councilmen. Krulish v. Evans, 16 N.J. 200 , 203 (1943). Cf. Wellford v. Battaglia, supra. It is by no means suggested that continuing residence requirements are per se invalid. See Krzewinski v. Kugler, supra.

What we are faced with here is a stenographer, an employee of the city government, who was dismissed from her position because of noncompliance with the residency ordinance. Her inability to comply was based upon an expressed concern about the crime rate, her inability to find acceptable housing at her income level, and her attempt at reconciliation with her husband, who lived in Union, N.J. Lest this be misunderstood, it should be emphasized that this dissent is not an effort to justify urban flight to the suburbs or an abandonment of the future of our cities. My beliefs are completely to the contrary. However, it is not constitutionally permissible for the city to wall in its employees as a measure to increase concern for the community. The myriad of social ills with which the city is plagued does not serve to legitimize the parochial concept of restricting employment to residents where a compelling interest is the standard for judgment. This is particularly so where the Legislature has since expressed its dissatisfaction with residence requirements where a more compelling interest has been shown to exist.

In Shapiro, welfare payments were considered a basic necessity of life. In Memorial Hospital v. Maricopa County, supra, 415 U.S. at 259, 94 S.Ct. at 1082, 39 L.Ed.2d at 315, medical care was deemed equally as basic. The state had not shown that the durational residence requirement was "legitimately defensible" in furthering a compelling state interest. None of the purposes asserted as justification for the requirement — protecting the county's fiscal integrity and budget predictability, preventing the dilution of services for longtime residents who have contributed to the community particularly by paying taxes, inhibiting migration of indigents, generally deterring indigents from taking up residence in the county solely to utilize the medical facilities and prevention of fraud — satisfied the state's burden of justifying the necessity to impinge on constitutionally protected interests.

In Kennedy v. City of Newark, supra, the Court upheld the ordinance after concluding that its constitutionality rested on several rational bases:

* * * Government may well conclude that residence will supply a stake or incentive for better performance in office or employment and as well advance the economy of the locality which yields the tax revenues. * * * ( 29 N.J. at 184).

In Ector v. City of Torrance, infra, the Supreme Court of California relied upon various similar bases to justify the constitutional infringement.

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. We cannot say that one or more of thse goals is not a legitimate state purpose rationally promoted by the municipal employee residence requirement here in issue. ( 10 Cal.3d at 135, 109 Cal.Rptr. at 852, 514 P.2d at 436).

Let us evaluate the validity of these state purposes. Just as it is unconstitutional to apportion economic benefits according to a citizen's tax contribution, Shapiro v. Thompson, supra, 394 U.S. at 633-634, 89 S.Ct. at 1330-1331, 22 L.Ed.2d at 614, the city cannot rely upon the "public coffer" theory to require residency to recirculate salaries "within the economy of the municipality that pays those salaries." Krzewinski v. Kugler, supra, 338 F. Supp. at 498-499 , n. 4. While recognizing the compelling interest of the municipality in requiring policemen and firemen to live within municipal borders, the availability of trained manpower for emergencies was not considered a legitimate justification.

* * * The capacity of police and firemen for emergency response is not necessarily impaired by residency outside municipal bounds because, as plaintiffs argue, geographical proximity cannot logically be equated with municipal borders. The state interest in proximity might be satisfied much more rationally and fairly by a time or distance radius computation. Setting the bounds for residence at the city limits is not compelled by a valid state interest in proximity and approaches being arbitrary. ( Krzewinski v. Kugler, 338 F. Supp. at 499 , n. 6).

Similarly, Ector's concern with absenteeism and tardiness cannot even be a rational basis for residence requirements, let alone provide a compelling interest. The reduction in unemployment among inner-city minority groups relates to those whom the city hires, and not the requirement that employees live in the city. The remaining compelling statements urged to justify this constitutional infringement are the promotion of ethnic balance, improving relations between employees and residents, and enhancing the incentive for performance of employees. While they may be desirable objectives, not one of them individually or all of them collectively present so compelling an interest as to transcend a constitutional right.

The court in Krzewinski v. Kugler, supra, noted the rioting and looting that had taken place in Newark in 1967 and attributed "much of this lawlessness to a deeply rooted disrespect for an absentee police force. . . ." 338 F. Supp. at 499. Even after the court recognized as compelling the interests underlying residency requirements for policemen and firemen, Krzewinski v. Kugler, supra, the Legislature enacted L. 1972, c. 3, Secs. 1 and 11, N.J.S.A. 40A:14.9-1 and 40A:14-122.1, prohibiting municipalities from requiring policemen and firemen to reside within their employer municipality and indicating that it did not consider their residence so compelling as to justify residence requirements. The majority now tells us that even though the Legislature does not deem it necessary to require policemen and firemen to reside in a municipality, it is still necessary and compelling for a stenographer to so reside.

Other jurisdictions do not agree. The Supreme Court of New Hampshire held unconstitutional an ordinance requiring all classified employees of the city, including school teachers, to live in their employer municipality unless granted a special permit. Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (Sup.Ct. 1971). Such permits could be granted only "for extreme financial hardship, shortage of housing, or health reasons." 274 A.2d at 790. The court, while recognizing that some impairment of private rights may be permitted, applied the following test:

* * * In passing upon the reasonableness of a restriction upon private rights the importance of the public benefit is balanced against the seriousness of the restriction of the private right sought to be imposed. * * * ( 274 A.2d at 791).

After noting that the right of every citizen to live where he chooses and travel freely within and across state boundary lines, the court stated that it had no doubt that the residence ordinance restricted the fundamental rights of city employees. While carefully indicating that some employees whose residence "near their place of duty" may be important enough to justify a restriction on their residence, the court noted that this possibility did not justify the "broad and all inclusive requirement that all employees live within the city limits." 274 A.2d at 791.

Similarly, the court invalidated a school district regulation requiring residence within the county in Hanson v. Unified Sch. Dist. No. 500, Wyandotte Cty., Kan., 364 F. Supp. 330 (D. Kan. 1973). While the court based its decision on a violation of the equal protection clause, and disclaimed an infringement on the right to travel, it noted at 332:

In effect, the school board's regulation requires the plaintiffs to choose between their rights to live and to work where they desire. They may either live outside Wyandotte County or they may teach in the school district within the county. They may not, however, do both. [Citation omitted.]

In rejecting the "right-privilege" argument and "public interest" in expending school district revenues for salaries of residents, the court first noted the decreasing importance of local revenues in school financing in Kansas. See Robinson v. Cahill, supra. Secondly, it pointed out that any contribution of residents to the local tax base was "infinitesimal when compared to the interference with plaintiff's rights," citing Donnelly v. City of Manchester, supra ( 364 F. Supp. at 333). The court took note that teachers were certified by the state (appellant in the case before this Court is in the Civil Service) and would presumably be qualified to teach anywhere in the state. While the residence requirement was a laudable one, the classification here was "much too crude" to meet the avowed purpose.

No person has a vested right to be employed by the state. See Slochower v. Board of Ed. of N.Y., 350 U.S. 551, 555-556, 76 S.Ct. 637, 639-640, 100 L.Ed. 692, 699 (1956). The absence of a right to public employment, however, does not give rise to a state's ability to "condition a privilege which it may deny altogether on the surrender of a constitutional right." Kutcher v. Housing Authority of City of Newark, 20 N.J. 181 , 188-189 (1955). See Donnelly v. City of Manchester, supra, 274 A.2d at 791; Bagley v. Washington Township Hospital District, 65 Cal.2d 499, 55 Cal.Rptr. 401, 405, 421 P.2d 409, 413 (Sup.Ct. 1966).

For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests * * *. ( Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570, 577 (1972)). Accord, DeStefano v. Wilson, 96 N.J. Super. 592 , 598 (Law Div. 1967); Bagley v. Washington Township Hospital District, supra. States may not penalize the exercise of rights guaranteed by the Constitution. Harman v. Forssenius, 380 U.S. 528, 540-541, 85 S.Ct. 1177, 1185, 1186, 14 L.Ed.2d 50, 58-59 (1965).

An analogous question to that before this Court was passed upon in Ector v. City of Torrance, 28 Cal.App.3d 293, 104 Cal. Rptr. 594 (Ct.App. 1972), rev'd, 10 Cal.3d 129, 109 Cal. Rptr. 849, 514 P.2d 433 (Sup.Ct. 1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974). While the residence requirement was struck down by the Court of Appeal, it was upheld by the California Supreme Court. The Torrance City Charter provided that all officers and employees of the City be residents or become residents within six months of their appointment or date of employment. An exception was provided for those with technical, special or professional knowledge or abilities. In applying the compelling state interest test of Shapiro, the Court of Appeal did not find sufficient justification for an impingement upon the "right of freedom to travel beyond the boundaries of the city for residential purposes." 104 Cal.Rptr. 594, 598. The court relied on Purdy Fitzpatrick v. State, supra, 79 Cal.Rptr. 77 , 456 P.2d 645 (Sup.Ct. Cal. 1969). In declaring the unconstitutionality of a statute prohibiting the employment of aliens in public works, the Purdy court noted that the state may not condition public employment upon a waiver of constitutional rights. In order to avoid offending the equal protection provision of the Fourteenth Amendment, the state must establish that the classification constitutes a necessary means of accomplishing a legitimate state interest, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and that the law serves a compelling state interest, Shapiro v. Thompson.

In reversing the holding of the Court of Appeal in Ector, the Supreme Court of California first relied upon a specific directive in the state constitution providing for charter cities, such as Torrance, to prescribe "qualifications" for employees. Such a constitutional right is not existent in New Jersey. Secondly, as to the federal constitutional claim, the court held that the right to travel did not include what it termed a "right to commute." It therefore applied the rational basis test, citing Kennedy v. City of Newark ( 109 Cal.Rptr. at 852, 514 P.2d at 436). It also noted that "the cultural and educational rewards of international travel . . . are not reaped from routine daily trips of a harassed metropolitan commuter," citing Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). 109 Cal.Rptr. at 852, 514 P.2d at 436.

It is an over-simplification, however, to characterize the right asserted herein as merely that of a "harassed commuter." "It is the exercise of that initial right to migrate to a new location which the employee wishes to assert, not that of daily travel to the municipality." Goldstein, supra, 7 U. San Fran. L. Rev. at 527.

While attempting to clarify the impact on travel required to invoke the compelling state interest test, the Court, in Memorial Hospital v. Maricopa County, supra, cites the "perceptive opinion" in Cole v. Housing Authority of City of Newport, supra, in which a two-year residence requirement for applicants for federally-aided low rent housing was declared violative of the equal protection clause. The Cole court clarified what it felt was the Supreme Court's concept of travel.

* * * The Court apparently uses "travel" in the sense of migration with intent to settle and abide. See Note, Shapiro v. Thompson: Travel, Welfare and the Constitution, 44 N.Y.U.L. Rev. 989, 1012 (1969). Thus, laws that comparatively disadvantage persons traveling to take advantage of state benefits and then leaving are permissible under Shapiro. For example, the Court suggested that residency is a reasonable requirement for eligibility to receive welfare benefits but that the one-year waiting period was unconstitutional. Shapiro, supra at 636, 89 S.Ct. 1322, 22 L.Ed.2d 600. Any residency requirement might be thought to penalize the right to travel if "travel" is used in the sense of movement. A resident of Maine vacationing for a month in New Hampshire might be penalized for traveling if he could not obtain the benefits of a library card in New Hampshire during his vacation. Nevertheless, a residency requirement so "penalizing" that kind of travel is probably permissible under Shapiro. [Footnotes omitted.] ( Cole v. Housing Authority of City of Newport, supra, 435 F.2d at 811).

The question in Cole, as in Shapiro, was whether the residency requirement penalized persons because they have recently migrated to the locality. The residence requirement imposed by the Newark ordinance directly affects one's ability to "migrate with intent to settle and abide," while having no relationship to those taking temporary advantages of State benefits. If one works for a local government, the majority would allow the choice of where to settle to be made by the governing body, and not the individual. Such restrictions pose a clear threat to migration by causing a second dislocation when new arrivals or present employees find government work in a jurisdiction adjacent to that in which they have decided to settle.

In reversing the Court of Appeal decision in Ector v. City of Torrance, the Supreme Court of California misconstrued the law with respect to the necessity for impairment of constitutional rights.

* * * Appellant need not necessarily prove he was wholly denied rights he now invokes, but he must at least show that his exercise of those rights was actually and significantly impaired. ( 10 Cal.3d at 136, 109 Cal.Rptr. at 853, 514 P.2d at 437).

It is a "fundamental misunderstanding of the law" to require actual and significant impairment of the right to travel. Dunn v. Blumstein, supra, 405 U.S. at 339, 92 S.Ct. at 1001, 31 L.Ed.2d at 283. Shapiro v. Thompson did not rest upon a finding that the denial of welfare actually deterred travel nor, historically, have other right to travel cases relied upon the presence of actual deterrents. Dunn v. Blumstein, 405 U.S. at 339-340, 92 S.Ct. at 1001-1002, 31 L.Ed.2d at 282-283. In Shapiro v. Thompson, 394 U.S. at 634, 89 S.Ct. at 1331, 22 L.Ed.2d at 615, the Court stated that "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." (Emphasis original.) See Eggert v. City of Seattle, supra, 505 P.2d at 805.

Similarly, the Court in Memorial Hospital v. Maricopa County, supra, 415 U.S. at 257, 94 S.Ct. at 1082, 39 L.Ed.2d at 314, noted that denial of nonemergency medical care may very well inhibit an indigent from migrating to the "clean dry, air of Arizona, where relief from his disease could also bring relief from unemployment and poverty." The fact that one may hesitate to travel because of the inability to fall back on the state for medical care was held to be a sufficient penalizing within Memorial Hospital v. Maricopa County. In the case now before us, Mrs. Abrahams is being told that she can exercise her right to migrate beyond the city limits only on penalty of loss of her employment. It is difficult to imagine more direct evidence of a penalty to deter travel.

The City's position is essentially that expressed in Kennedy v. City of Newark, supra, to the effect that residence supplies a necessary incentive for better performance of employees and increased concern for the community. Newark notes in its brief that it, like many urban centers, is plagued by a myriad of social ills, including inadequate housing, schools and health care, as well as high crime and unemployment levels. While these problems are not to be minimized, penalizing resident employees for moving beyond a municipality's boundaries and barring nonresidents from employment are not constitutionally permissible alternatives. Our outlook must be less parochial in range.

Quoting Chief Justice Weintraub, the Supreme Court of California framed the question before them in Ector v. City of Torrance, as follows:

The question is not whether a man is free to live where he will. Rather the question is whether he may live where he wishes and at the same time insist upon employment by government. * * *. ( 10 Cal.3d at 136-137, 109 Cal.Rptr. at 853, 514 P.2d at 437 quoting Kennedy v. City of Newark, supra, 29 N.J. at 183).

I respectfully disagree. The question is not whether a man, having chosen a place to live, may insist upon employment by a government, but rather, whether the government may compel an individual to live within its boundaries as a condition of continued employment.

[T]he question before this Court is not whether a man has a right to be a policeman or fireman and simultaneously insist upon his right to live where he wishes, but rather whether the interests of a municipality in asking a policeman or fireman to surrender his constitutional right to travel and migrate in exchange for his job are sufficiently compelling to justify the creation of a working class of immobiles. [Footnote omitted.] ( Krzewinski v. Kugler, supra, 338 F. Supp. at 499 ).

City employees must choose between living outside Newark or retaining their jobs with the city. They may not do both. The ordinance penalizes the exercise of that initial right to migrate.

I fail to see the state interest involved herein as sufficiently compelling to justify the broad and all inclusive limitations imposed on families in not allowing them to travel where they choose. That the residence ordinance now before this Court is a potential deterrent that would clearly penalize the right to travel to a substantial degree, is clear. Donnelly v. City of Manchester, supra, 274 A.2d at 791; Krzewinski v. Kugler, supra, 338 F. Supp. at 498 .

I would hold the ordinance unconstitutional as an impermissible restriction on the right to travel in the absence of a sufficiently compelling state interest.

II

I agree with the majority insofar as it holds the "special circumstances" exception of the ordinance void in the absence of any standards whatsoever to guide the discretion of officials in its application. Unlike the majority, however, I would strike down the entire ordinance on the basis of this unconstitutional section.

The Newark ordinance does not contain a severability clause. Even where such a clause is present and one section of an ordinance is declared invalid, the ordinance may be invalidated in toto if "without such an escape hatch the municipality might have adopted an entirely different ordinance." Dallenbach Sand Co. v. Mayor, etc., So. Brunswick Twp., 90 N.J. Super. 218 , 221 (App.Div. 1966). Absent a severability clause, "it is to be presumed that the Legislature intended the act to be effective as an entirety." State v. Doto, 10 N.J. 318 (1952); Riccio v. Hoboken, 69 N.J.L. 649, 662 (E. A. 1903). See Bd. of Com'rs, Ridgefield Pk. v. A.S. Pater Realty Co., 73 N.J. Super. 155, 161 (Ch.Div. 1962). This alone, however, is not determinative of the issue. As stated by this Court in Angermeier v. Sea Girt, 27 N.J. 298 , 311 (1958):

The principle of separability is in aid of the intention of the lawgiver. The inquiry is whether the lawmaking body designed that the enactment should stand or fall as a unitary whole. It is not enough that the act is severable in fact; its severability in the event of partial invalidity must also have been within the legislative intention. It is a question of interpretation and of legislative intent whether the particular provision is so interwoven with the invalid clauses as that it cannot stand alone. A severability clause (there was none such here) "provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command." Dorchy v. State of Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924). Absent such express declaration, an unconstitutional provision of a statute does not affect the validity of another provision of the enactment, if otherwise valid, unless the two are so intimately connected and dependent upon each other as to raise the presumption that the Legislature would not have adopted the one without the other. Where the principal object of the statute is constitutional and the objectionable feature can be excised without substantial impairment of the general purpose, the statute is operative except in so far as it may contravene fundamental law. St. John The Baptist Greek Catholic Church of Perth Amboy v. Gengor, 121 N.J. Eq. 349 (E. A. 1937); State v. Doto, 10 N.J. 318 (1952).

The question then is, given the presumption of an intention that the act be effective as an entirety, whether the "special circumstances" exception is so intimately related to the whole ordinance that its excision will substantially impair the general purpose of the enactment. The ordinance first requires that all officers and employees of the Board of Commissioners be residents of the City of Newark, subject of course to statutory exceptions. The second section of the ordinance grants the director of any department authority to waive compliance with the residency requirement for reasons of (1) health, (2) nature of employment, and (3) special circumstances. The first two exceptions are very specific. The third exception, which the majority today declares void for vagueness, could refer to any number of reasons for nonresidence, including professional or technical ability, housing shortages, or personal problems and gives the department directors broad areas of discretion. To remove this area of discretion from the director of any department while retaining the ordinance would be to confine exceptions to health and nature of employment. However, absent the unfettered discretion which the "special circumstances" clause creates, and in view of the presumption that it was to be viewed in its entirety, the ordinance is a restrictive regulation differing in nature and effect so substantially from that enacted as to justify striking down the whole ordinance. Washington National Ins. Co. v. Bd. of Review, 1 N.J. 545 (1949); Bd. of Com'rs. v. A.S. Pater Realty Co., supra, 73 N.J. Super. at 160-162.

III

A failure to prosecute others because of lack of knowledge is not sufficient to sustain an allegation of discriminatory enforcement. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 452 (1962); Kennedy v. City of Newark, supra, 29 N.J. at 192. Even the conscious exercise of some selectivity in enforcement is not necessarily a constitutional violation. Oyler v. Boles, supra, 368 U.S. at 456, 82 S.Ct. at 506, 7 L.Ed.2d at 453. This is not a situation, however, where I can join with the majority in finding the absence of "any evidence of a deliberate policy of non-enforcement by the directors of other city departments, or by the city administration as a whole. . . ." One cannot seriously contend that this record is "barren of proof" as was the case in Kennedy v. City of Newark, supra, 29 N.J. at 192. The majority concedes that of appellant's random sampling of 142 city employees, a full 15% (21) were found to be nonresidents in apparent violation of the ordinance. At no point in the briefs or at oral argument was it demonstrated that any city-wide procedures existed either for the enforcement of the ordinance or the granting of exemptions. No city-wide directives or instructions were ever circulated. Enforcement was pursued solely within the law department.

Failure to enforce an ordinance does not in and of itself preclude subsequent enforcement. Kennedy v. City of Newark, supra, 29 N.J. at 191. In Kennedy, however, there was no evidence of a studied policy not to enforce the ordinance and no evidence of official knowledge of violations. Such is not the case here.

The "missing link" of Kennedy v. City of Newark is present here: official knowledge of violations of the ordinance. Kennedy v. City of Newark, supra at 192. The City's records speak for themselves. It can hardly be contended that the City was unaware of other violations when the City's records show that in a random sampling, more than 15% of City employees were in violation of the ordinance.

The presumption of validity of municipal ordinances may be overcome only by a clear showing of arbitrariness or unreasonableness. Kozesnik v. Montgomery Twp., 24 N.J. 154 , 167 (1957). But, as Justice (then Judge) Hall noted in Edelstein v. Asbury Park, 51 N.J. Super. 368 , 390 (App.Div. 1958): "The absence of corrupt motive, or even the presence of good faith, does not alone preclude judicial examination or remedy." Appellant has made an offer of proof as to Newark's discriminatory enforcement by this sampling.

Circumstantial or presumptive evidence, as a basis for deductive reasoning in the determination of civil issues, is defined as "a mere preponderance of probabilities, and, therefore, a sufficient basis for decision." Jackson v. Delaware, L. W.R. Co., 111 N.J.L. 487 ( E. A. 1933). As there said, it need not have the quality of certainty, but it must be a presumption grounded in reason and logic; mere guess or conjecture cannot be substituted for legal proof. The burden of persuasion is not sustained unless the evidence demonstrates the offered hypothesis as a rational inference, that is to say, a presumption grounded in a preponderance of the probabilities according to the common experience of mankind. It is not easy to lay down with precision the line of demarcation between a just and reasonable inference and mere conjecture or surmise. The accepted standard of persuasion for the triers of the facts is that the determination be probably founded in truth. A bare quantitative preponderance is not enough. The evidence must be such in quality as to lead a reasonably cautious mind to the given conclusion. The measure of the weight of the evidence is "the feeling of probability which it engenders." Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958), citing Wigmore on Evidence (3 d ed.) § 2498. See Sivak v. City of New Brunswick, 122 N.J.L. 197 ( E. A. 1939).

( Joseph v. Passaic Hospital Ass'n, 26 N.J. 557 , 574-575 (1958))

Appellant's showing of a 15% violation rate combined with Corporation Counsel's admitted efforts at enforcement solely within the law department raise the inference that the City's enforcement efforts were so arbitrary as to constitute discrimination in derogation of appellant's rights under the equal protection clause. Once appellant had established the inference of nonenforcement coupled with knowledge by City officials, it is not the employee's burden to come forward with conclusive data, but the City is obligated to show what is within its control and expertise, i.e., that the ordinance was being fairly enforced and its officials in fact had no knowledge of violations.

The time for admonitions and warnings of future enforcement was after Kennedy v. City of Newark. The statement in the majority opinion to the effect that City officials "may in the past have disqualified nonresident applicants for City employment" is a belated attempt to meet the burden of proof which the City has failed to sustain. That the majority cautions the City against taking today's holding as an "excuse for continued nonenforcement" is a sorry apology for leveling constitutional barriers against impingement of the right to travel and the right to the equal protection of the laws.

I would reverse the decision of the Civil Service Commission and hold the Newark Residence Ordinance unconstitutional.

For affirmance — Justices HALL, SULLIVAN and CLIFFORD and Judges CONFORD and COLLESTER — 5.

For reversal — Justice PASHMAN — 1.