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Rossi v. Mayor and Council of Borough of Moonachie

Decided: November 19, 1941.

LOUIS A. ROSSI ET AL., PROSECUTORS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF MOONACHIE, DEFENDANT



On certiorari.

For the prosecutors, Dominick F. Pachella.

For the defendant, Ralph W. Chandless.

Before Justices Parker, Donges and Colie.

Parker

The opinion of the court was delivered by

PARKER, J. The attack is on a resolution of the borough council, adopted on May 14th, 1941, by a vote of four to three, the six councilmen being tied three to three, and the Mayor, Louis O. Dierksen, giving the fourth vote in favor of the resolution.

Four reasons are filed, but none of them challenges the technical regularity of the procedure or the language of the resolution. The reasons are all directed to the good faith of those voting for the resolution, and particularly of the Mayor. The first reason is lengthy and argumentative, but the substance of it is that though the resolution, which purports to remove from office the chief and four other members of the local police department, professes that such action is in the interest of economy, the real motive was political enmity. The second reason is in substance that the Mayor had been formerly police chief and had been expelled from the department for having accepted a bribe. This seems irrelevant. The third is that the resolution was contrary to the will of the great majority of citizens and taxpayers. This, if true, is of itself no valid ground for setting aside the resolution, and may as well be dismissed at once from consideration. The fourth is that the resolution was not passed for reasons of economy, "but that the removal of prosecutors was motivated solely by political and personal discrimination * * *." The evidence touching the first and fourth reasons we have examined, with the following results:

Moonachie, a borough of Bergen County with a population according to the 1940 census of 1,454, had in 1937 a police force consisting of a chief and six policemen. The prosecutor Rossi was Mayor, and one Louis Dierksen was chief of police.

Dierksen was charged with bribery, was tried before the Mayor and Council, found guilty, and by resolution expelled from the force. In the following year, however, Dierksen ran for the office of Mayor against Rossi, a candidate for re-election, and defeated him by five votes. At the opening of 1939 the Council, which had already appointed more patrolmen, making a total of nine, appointed Rossi chief of police, bringing the total to ten, or three more than authorized by the ordinance. We think there can be no doubt that Dierksen was hostile to Rossi, and that he had enough followers in the borough council to carry the resolution adopted on May 14th, 1941, which is brought up by the present writ. In view of the claim set up in the reasons filed, and presently to be stated, the text of the resolution may as well be reproduced here.

"Whereas, among other mounting costs of municipal government the payment of the present bonded debt requirements of the Borough of Moonachie will necessitate the expenditure of an additional sum of Five Thousand Dollars ($5,000) per annum, and the payment of an additional sum of Three Thousand Dollars ($3,000) per annum brought about through the increase in tuition of school children; and

"Whereas, in order to prevent a confiscatory tax rate in the Borough of Moonachie it is essential that there be every possible reduction in municipal expenditures; and

"Whereas, the public safety of the Borough of Moonachie could be fully and completely served by a less number of members of ...


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