Grogan v. DeSapio

• Decision Date: 04 April 1952
• Docket Number: No. L--5920,L--5920
• Citation: 88 A.2d 666,19 N.J.Super. 469
• Parties: GROGAN et al. v. DE SAPIO et al.
• Court: New Jersey Superior Court

Page 469

19 N.J.Super. 469

88 A.2d 666

GROGAN et al. v. DE SAPIO et al.

No. L--5920.

Superior Court of New Jersey Law Division.

April 4, 1952.

McGlynn, Weintraub & Stein, Newark, attorneys for plaintiffs (Joseph Weintraub, Newark, of counsel).

Dominick J. Marrone, Hoboken, attorney for defendants, Mayor and Council of City of Hoboken and Board of Commissioners of Mayor and Council of City of Hoboken.

Otmar J. Pellet, Hoboken, attorney for Fred M. DeSapio, Michael M. Borelli and Thomas A. Gallo.

PROCTOR, J.S.C.

Plaintiffs seek to set aside five resolutions adopted by the Board of Commissioners of the City of Hoboken at the organization meeting on May 15, 1951, by which the powers and duties of the board were distributed and assigned to each of the several departments of the commission. Plaintiffs, Grogan and Borrone, and defendants, DeSapio, Borelli and Gallo, are members of the defendant board of commissioners. The three defendant commissioners voted in the affirmative for the resolutions in dispute, and the two plaintiff commissioners voted in the negative. Plaintiff, Finizio, is a resident and taxpayer of the defendant municipality.

Defendants' motion to strike the complaint for failure to state a cause of action was denied. (15 N.J.Super. 604, 83 A.2d 809 (Law Div.1951)).

On May 8, 1951 a municipal election was held in the City of Hoboken, and out of a field of nearly 50 aspirants the successful candidates finished in the following order: Grogan, Borelli, Borrone, DeSapio, Gallo. Grogan and Borrone had been bracketed with three others on one ticket; DeSapio, Borelli and Gallo had been bracketed with two others on another ticket. Grogan, DeSapio and Borelli had been candidates for re-election; Borrone and Gallo had never served on the board before.

Subsequent to the election and prior to the organization meeting DeSapio, Borelli and Gallo met privately and prepared the resolutions now under attack. After their adoption at the organization meeting, other resolutions were adopted designating Grogan, Director of the Department of Parks and Public Property; Borrone, Director of the Department of Public Works; Mayor DeSapio, Director of the Department of Public Affairs; Borelli, Director of the Department of Public Safety; Gallo, Director of the Department of Revenue and Finance.

It is unnecessary to discuss in detail the contents of the challenged resolutions and the specific powers and duties assigned therein to the various departments. However, it clearly appears that, by their adoption, the powers and duties of each of the departments, of which plaintiff commissioners were designated directors, were negligible when compared to the powers and duties assigned to each of the departments headed by the defendant commissioners. In fact, so few powers and duties were entrusted to the departments assigned to the plaintiff commissioners that the difference between these departments, as they now exist, and their outright abolition has all but reached the vanishing point, with the result that plaintiff commissioners are left as mere figureheads in charge of 'skeleton' departments.

Plaintiffs contend that the aforesaid resolutions are invalid in that they were 'adopted in bad faith and constitute an abuse of discretion and a fraud upon the Walsh Act.' (R.S. 40:72--1 et seq., N.J.S.A.).

The defendant commissioners do not deny that the powers and duties assigned by the challenged resolutions to the departments headed by plaintiff commissioners were inconsequential. However, they maintain that the statute (R.S. 40:72--5, N.J.S.A.) leaves it 'entirely to the judgment of the board to determine what powers and duties are appropriate for each department to perform'; that 'this discretion is legislative'; that 'the statute fixes no formula or guide as to the manner in which such discretion is to be exercised, leaving that entirely to the dictates of the judgment and conscience of the Board of Commissioners, uncontrolled by the judgment and conscience of others'; that 'the resolutions were adopted as provided by law' and 'the motives of the members of the board adopting them are not proper subjects for judicial inquiry.' R.S. 40:72--5, N.J.S.A., provides:

'The board of commissioners shall determine the powers and duties to be performed by each department and shall assign such powers and duties to each department as it may deem appropriate. * * * and make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the municipality.'

Courts are reluctant to interfere with municipal action by questioning the motives of those entrusted with governmental power proceeding within the allowed sphere of action. Mere mistakes of policy or of judgment, within the conferred authority, are not ordinarily subject to judicial restraint. Reimer v. Allendale, 123 N.J.L. 563, 567, 568, 10 A.2d 160 (Sup.Ct.1939). However, any discretion granted to public officers in the performance of their duties must be confined to such acts as they are empowered to perform. Discretion as embodied within the phrase, 'as it may deem appropriate' (R.S. 40:72--5, N.J.S.A., supra), presupposes that it is to be exercised within the power granted.

A municipal corporation is a government of enumerated powers, acting by delegated authority. As respects both its strictly governmental office and its municipal character for the conduct of a local self-government, the Legislature is the exclusive source of its authority. The municipal corporation possesses only such rights and powers as have been granted in express terms, or arise by necessary or fair implication, or are incident to the powers expressly conferred, or are essential to the declared objects and purposes of the municipality. It has no inherent jurisdiction to make laws or adopt regulations of government. Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 22, 68 A.2d 744 (1949); Jersey City v. Martin, 126 N.J.L. 353, 361, 19 A.2d 40 (E. & A.1941); N.J. Good Humor, Inc., v. Bradley Beach, 124 N.J.L. 162, 164, 11 A.2d 113 (E. & A.1940); 2 McQuillin, Municipal Corporations, 136, § 4.82 (3rd ed.1949).

The Legislature in the Walsh Act provided for the government of municipalities by a commission form of government, the commission to consist of three members in municipalities having less than 10,000 inhabitants, and of five members in municipalities having 10,000 inhabitants or more. R.S. 40:72--1, as amended L.1948, c. 21, N.J.S.A. The City of Hoboken is in the latter class. It is mandatory under R.S. 40:72--4, N.J.S.A., that in any city of this class all the powers and duties vested in the board of commissioners by R.S. 40:72--2, N.J.S.A., and R.S. 40:72--3, N.J.S.A., be 'distributed into and among five departments,' provided therein. It is also mandatory that the board of commissioners assign the powers and duties to each department (R.S. 40:72--5, N.J.S.A.) and at the first regular meeting after the election designate one commissioner to be director of each of these five departments. R.S. 40:72--6, N.J.S.A. The act contemplates that there shall be a division of authority and an imposition of individual responsibility in departmental work with each commissioner assigned to a single department so that he may be held accountable for its management. Bogle v. Woods, 161 A. 357, 10 N.J.Misc. 858, 860 (Sup.Ct.1932). After the various powers and duties of government have been distributed among the several departments and the appointment of directors has been made, the executive and administrative powers are to be exercised by the respective commissioner presiding over his department and not by the board of commissioners as a whole. Rubenstein v. Bayonne, 121 N.J.L. 97, 100, 1 A.2d 305 (Sup.Ct.1938). The philosophy underlying the statute is that each commissioner as the head of a department shall have substantial executive and administrative powers and duties.

In construing the resolutions in issue, it is the ultimate result that is controlling, and that result must be supported by a proper exercise of the power conferred by the Walsh Act. American Grocery Co. v. Board of Com'rs of City of New Brunswick, 124 N.J.L. 293, 297, 11 A.2d 599 (Sup.Ct.1940), affirmed 126 N.J.L. 367, 19 A.2d 696 (E. & A.1941). If the challenged resolutions had taken the form of distributing the powers and duties into and among three departments instead of five, there could be no doubt of their illegality as being beyond any power granted. Is the court to condone an illusory compliance with the legislative mandate which accomplishes that very result? If no substantial powers and duties have been assigned to the departments of which plaintiff commissioners have been designated directors, can they be deemed departments within the intendment of the statute (R.S. 40:72--4, N.J.S.A.)? Can the duties of a department be withheld and its powers so undermined as to render it, for all practical purposes, insignificant, and the department still be left intact? The court regards the reduction of a department to a state of futility, a fate to which each of the departments headed by plaintiff commissioners was relegated by the adoption of the challenged resolutions, as tantamount to its abolition.

A statute will not be construed to permit its purpose to be defeated by evasion. State v. Hand, 71 N.J.L 137, 141, 58 A. 641 (Sup.Ct.1904). See also Haber v. Goldberg, 92 N.J.L. 367, 374, 105 A. 874 (E. & A.1918); Mendles v. Danish, 74 N.J.L. 333, 336, 65 A. 888 (Sup.Ct.1907). The exercise of a statutory power in a manner not within the contemplation of the Legislature, to produce a result that could not have been foreseen by the Legislature, will not be countenanced as valid. Donohue v. Campbell, 98 N.J.L. 755, 763, 121 A. 700 (E. & A.1923). The adoption of these resolutions, in effect, concentrated the powers and duties of five departments into three departments,...