Opinion
Argued October 19, 1982 —
Decided November 9, 1982.
Appeal from the Superior Court, Chancery Division, Mercer County, Dreier, J.S.C.
Affirmed as modified.
Before Judges MATTHEWS, ANTELL and FRANCIS.
Michael S. Bokar, Deputy Attorney General, argued the cause for intervenor-appellant State of New Jersey ( Irwin I. Kimmelman, Attorney General of New Jersey, attorney, and Michael S. Bokar, on the brief). George F. Kugler, Jr. argued the cause for plaintiffs-respondents Neshaminy Constructors, Inc., David A. Robinson and Anthony Canuso ( Archer, Greiner Read, attorneys; Steven W. Suflas on the brief).
Thomas P. Foy argued the cause for amicus curiae New Jersey State AFL-CIO ( Hartman, Schlesinger, Schlosser and Faxon, attorneys; Jan M. Schlesinger, on the brief).
Rhoads, Parkin Harris filed a brief for amicus curiae Ewing-Lawrence Sewerage Authority; Charles F. Harris, on the brief.
The State of New Jersey appeals from an order of the Chancery Division for summary judgment dated June 3, 1981, declaring unconstitutional the provisions of N.J.S.A. 34:9-2 requiring that employment preference on public projects "be given to citizens of the State of New Jersey who have resided and maintained domiciles within the State for a period of not less than one year immediately prior to such employment." The formal written opinion of the trial court appears at 181 N.J. Super. 376 (Ch.Div. 1981).
We express our disagreement only with footnote 1 at 378 of the trial court's opinion wherein it is stated that a companion statute, N.J.S.A. 34:9-1, "was declared unconstitutional" in Labor Industry Dep't v. Cruz, 45 N.J. 372 (1965). That decision was not decided on constitutional issues. The Supreme Court there found an implied repealer of N.J.S.A. 34:9-1 on the ground that it was "so inconsistent with the existing state of the law as to be no longer capable of continued existence." Id. at 380.
Subject to the foregoing modification, the judgment is affirmed substantially for the reasons stated by Judge Dreier for the Chancery Division in his published opinion.