Grogan v. DeSapio

• Decision Date: 06 September 1951
• Docket Number: No. L--5920--50,L--5920--50
• Citation: 83 A.2d 809,15 N.J.Super. 604
• Parties: GROGAN et al. v. DE SAPIO et al. PW.
• Court: New Jersey Superior Court

Page 604

15 N.J.Super. 604

83 A.2d 809

GROGAN et al. v. DE SAPIO et al.

No. L--5920--50 PW.

Superior Court of New Jersey, Law Division.

Sept. 6, 1951.

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

Dominick J. Marrone, Hoboken (Otmar J. Pellet, Hoboken, appearing), attorney for defendants.

HARTSHORNE, J.C.C. (temporarily assigned).

Plaintiffs, two of the members of the Board of Commissioners of the City of Hoboken, together with a taxpayer, have filed the above complaint against the three other Hoboken city commissioners, plus the board itself and the municipality as a body corporate, asking that the resolutions passed at the so-called organization meeting of the board on May 15, 1951, distributing the city departments and subordinate administrative functions between the individual commissioners, be set aside as illegal and void. After the filing of the complaint, plaintiffs, under the order of the court, took lengthy depositions of defendants for discovery before trial. As a result of such discovery, plaintiffs thereupon obtained the authority of the court to amend their complaint in order to amplify the charges therein contained.

Defendants move to strike the amended complaint for failure to state a cause of action. Rule 3:12--2. We accordingly turn to the allegations of such complaint, which, for the purpose of this motion, the court must take as true.

After charging that the defendants, the majority of the Hoboken commissioners, met previous to the organization meeting, without notice to the plaintiff minority members, and in their absence agreed to strip the minority commissioners of practically all the powers and functions usually vested in the departments to which they were to be assigned, amended complaint adds: 'By said agreement made privately as set forth in Paragraph 9, each individual defendant irrevocably bound himself to vote for said resolutions A, B, C, D, and E, at the public organization meeting and to do so notwithstanding anything which the plaintiff commissioners might urge in opposition thereto at said public meeting. The said individual defendants severally and jointly determined prior to said public meeting that they would not at the public meeting listen to, consider or deliberate upon any objections which the plaintiff commissioners might advance at the public meeting in opposition to said distribution of powers and duties, and at the said public meeting the individual defendants did refuse to enter into any discussions of the subject with the plaintiff commissioners. The said resolutions were not the product of the joint deliberation of all of the members of the Board of Commissioners, nor the product of joint deliberation of the members of the Board at a meeting held on notice to all members of the Board, but in fact were the product of a private meeting held by the individual defendants alone without notice to the plaintiff commissioners and without opportunity to them to participate as members of the Board therein.'

This substantially charges that, at least as to the resolutions in question, the organization meeting called for by the statute (R.S. 40:72--6, N.J.S.A.) was a mere sham, the entire administration of the City of Hoboken having been irrevocably decided upon at a preceding private gathering of the majority commissioners, meeting as individuals and in the absence of, and without notice to, the minority commissioners.

In further paragraphs of the complaint detailed allegations are made which need not be recited at length, charging that, instead of these resolutions having been adopted for public purposes and by a method 'appropriate' to the public welfare, within the discretion of the commissioners (R.S. 40:72--5, N.J.S.A.), said resolutions were not 'appropriate' to the public welfare, according to facts specifically alleged, but were in fact 'adopted in bad faith and constitute an abuse of discretion and fraud upon the statute.'

Defendants' motion to strike the amended complaint thus, in essence, poses the questions:

(1) Can the administrative set-up of a city government, operating under the commission from, be finally determined upon by the majority of the board, meeting privately as individuals, in the absence of the minority; or must same in fact result from the regular organization meeting, participated in freely and with an open mind, by a quorum at least, of each of the duly elected commissioners?

(2) Can such administrative set-up of such city government be the product, not of the actual judgment of the members of the city commission, exercised in their sound discretion, as 'appropriate' for the public welfare, but in disregard of the public welfare, in bad faith, and as an abuse of discretion?

To answer these questions in detail would appear almost a matter of supererogation. But since the first question is claimed to be one of novel impression, in city government at least, and as to the second the application of the principles involved has often proven difficult, we proceed.

Considering the first question, we turn primarily to the statute by which the state authorizes the city to govern itself. This specifically provides that the administrative subdivision of the city government shall occur at the organization meeting.

R.S. 40:72--5, N.J.S.A.: '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. The board shall prescribe the powers and duties of all officers and employees and may assign particulr officers and employees to one or more departments and may require any officer or employee to perform duties in two or more departments if the work required of such officer or employee in such different departments be similar in character, 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.'

R.S. 40:72--6, N.J.S.A.: 'The board of commissioners shall, at the first regular meeting after the election of its members, designate by majority vote one commissioner to be director of the department of public affairs, one commissioner to be director of revenue and finance, one to be director of the department of public safety, one to be director of the department of public works, and one to be director of the department of parks and public property, * * *.'

Obviously such statutory meeting connotes a true meeting where, to reach a lawful decision, each of the participants will consider with an open mind the viewpoints of his colleagues before reaching a decision. Thus alone can the basic principles of representative government be achieved, whereby the people are governed, not by some of their duly-elected representatives, but by all of them. Were this not the case, no meeting at all need occur. Each commissioner could as well mail his vote separately from his own home, and thereby decide the method of governing the city.

Our courts have long recognized this principle. In Whittingham v. Hopkins, 70 N.J.L. 322, at page 325, 57 A. 402, 403, (E. & A. 1903), the court said, in alluding to a decision made by an analogous local governing body: 'One object of the law, manifestly, was to obtain the benefit of the combined judgment of these public officers while assembled together as a body, having opportunity to interchange opinions with each other in their final action. Signing upon separate occasions by individual officers, in the absence of their associates and upon the pressure, perhaps, of interested parties, might be fraught with great danger to both public and private interests.' Recently this same principle was reiterated by our present Supreme Court in alluding to the action of a quasi-legislative state board: 'the findings of fact shall be the product of...