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Grogan v. De Sapio

Decided: April 4, 1952.

JOHN J. GROGAN, EDWARD J. BORRONE AND CARMELA FINIZIO, PLAINTIFFS,
v.
FRED M. DE SAPIO, MICHAEL M. BORELLI, THOMAS A. GALLO, THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, N.J., A MUNICIPAL CORPORATION OF NEW JERSEY AND THE BOARD OF COMMISSIONERS OF THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, N.J., DEFENDANTS



Proctor, J.s.c.

Proctor

[19 NJSuper Page 473] 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, De Sapio, 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 (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.).

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) 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 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 (Sup. Ct. 1939). However, any discretion granted to public officers in the ...


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