
    LOUIS A. ROSSI ET AL., PROSECUTORS, v. MAYOR AND COUNCIL OF THE BOROUGH OF MOONACHIE, DEFENDANT.
    Argued October 8, 1941 —
    Decided November 19, 1941.
    
      Before Justices Paekee, Donges and Colie.
    For the prosecutors, Bominiclc F. Pachella.
    
    For the defendant, Ralph W. Ghandless.
    
   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, i£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:

Moonaehie, 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 Bossi, 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 Bossi 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 Bossi, 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 the present Police Department; and

“Whereas, this Body has been advised that the law of this State requires that all dismissals or removals from the Police Department made for the reason of economy shall be made from the members last appointed; therefore,

“Be it Besolved by the Mayor and Borough Council of the Borough of Moonachie, in the County of Bergen, that for the reasons of economy the number of members of the Police Department of the Borough of Moonachie be decreased and the following named members, being the last members appointed, dismissed or removed and their original appointments be and are hereby rescinded and set aside;

“Louis A. Rossi, appointed January 2d, 1939,

“Louis Amaxuso, appointed December 8th, 1938,

“Anthony Marfino, appointed December 8th, 1938,

“Charles Dannel, appointed November 17th, 1938,

“Lawrence Ferrari, appointed November 17th, 1938, and

“Be it further Resolved that the names of the said persons so dismissed or removed shall be carried on a special list to be reappointed as members of the Police Department before any other person; and

“Be it further Resolved that this resolution shall take effect immediately.”

The reasons filed contain no challenge to the regularity of the procedure, nor indeed any challenge to the general merit of the resolution except perhaps that the pecuniary saving is insignificant. The case of the prosecutors, who are the deposed chief and three of the deposed patrolmen, is that the real motive of the resolution was personal malice and a desire for revenge, on the part of Dierksen.

We think that in large measure that claim is substantiated : but we also think that there was intrinsic merit in the resolution justifying its passage. The Moonaehie police force was almost no force at all. As we read the testimony, police headquarters is a room in a school house with no one regularly in charge; and the patrolmen are on duty only one day a week each, and then patrol only from 8 :30 till 10 :30 p. m. Each has his regular private employment.

The saving in salary is several hundred dollars a year, fairly worth while in such a small place, where, according to the testimony, the tax rate was 6.37 per cent., and the finances are managed by the Commissioner of Local Government. R. S. 52:27 A-65, et seq. On the whole, we conclude that there was reasonable ground for reduction of the police “force.” The writ will therefore be dismissed, but without costs.  