Lund ex rel. Wilbur v. Pratt

• Decision Date: 31 July 1973
• Citation: 308 A.2d 554
• Parties: Jon A. LUND, Attorney General For the State of Maine, ex rel. Evelyn M. WILBUR v. Norman G. PRATT.
• Court: Maine Supreme Court

Page 554

308 A.2d 554

Jon A. LUND, Attorney General For the State of Maine, ex rel. Evelyn M. WILBUR v. Norman G. PRATT.

Supreme Judicial Court of Maine.

July 31, 1973.

Ranger & McTeague by Orville T. Ranger, Brunswick, for plaintiff.

Pelletier & Runyon by Elmer E. Runyon, Sanford, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

The instant case was reported to the Law Court under Rule 72(a), M.R.C.P. upon the complaint, answers, agreed statement of facts and stipulation of the parties, for this Court to render such decision as the rights of the parties require.

The complaint states that the action is brought under the provisions of Rule 81 of the Maine Rules of Civil Procedure. The parties, in their agreed statement of facts, so expressly characterize the nature of the complaint and more specifically advance, as the ultimate purpose of these proceedings, their desire to obtain a determination, whether the defendant, Norman G. Pratt, is entitled to hold simultaneously the office of municipal assessor of the Town of Parsonsfield and that of Representative to the Legislature of the State of Maine from the class towns of Cornish, Limerick, Newfield, Parsonsfield, Shapleigh and Waterboro.

The complaint is dated July 14, 1971 and the report of the case January 17, 1972. The case was argued before the Law Court at the May term, 1972. The defendant's term of office as municipal assessor had already expired in March 1972. His term as Representative to the Legislature terminated when the 106th Legislature convened in January 1973. The report is discharged.

The caption of the case indicates that the action is being brought in the name of the Attorney General for the State of Maine on behalf of one Evelyn M. Wilbur, Plaintiff of Parsonsfield, York County, State of Maine. The individual plaintiff, albeit through the Office of the Attorney General, seeks the following relief:

1) a determination whether the offices of Representative to the Legislature and Municipal Assessor are incompatible;

2) a resolution of the question whether and for what periods defendant's acts as Representative and Assessor are void;

3) a decree ordering the defendant to return to the State of Maine and the Town of Parsonsfield respectively all amounts paid to defendant which he received while serving in the incompatible offices; and

4) costs and such other and further relief which justice may require.

Initially, let us say that the pleadings nowhere disclose the interest of Evelyn M. Wilbur in the maintenance of the action. It is not suggested that she is contesting either office to which the defendant was elected. Although the parties have stipulated the moneys received by the defendant in each office during the respective years 1969, 1970 and 1971, her authority to prosecute this collection proceeding for the Town of Parsonsfield or for the State of Maine is not disclosed. Neither the State of Maine as such, nor the Town is a party to the action. The pleadings are silent respecting the particular interest of the individual plaintiff, whether arising out of her right to vote or of her duty to pay taxes in the Town of Parsonsfield, or otherwise. As a matter of fact, her possible interest as a resident only appears in the caption.

The caption of a complaint constitutes no part of the statement of the cause of action, and the rights of the parties to relief cannot be made to depend upon what may appear in the caption of the case. The caption is no part of the pleading, unless made so by express reference thereto in the pleading itself. See, McDonough v. Waxman, 1930, 103 Cal.App. 169, 284 P. 482; Savannah Sugar Refining Company v. Royal Crown Bottling Co., 1963, 259 N.C. 103, 130 S.E.2d 33; Cook v. Wheeler, 1920, Mo.App., 218 S.W. 929; Jenkins v. Pullman Co., 1938, 9 Cir., 96 F.2d 405; Jackson v. Ashton, 1834, 8 Peters 148, 8 L.Ed. 898.

True, an appendix to one of the briefs would indicate that the individual plaintiff was an assessor with the defendant for the Town of Parsonsfield. Briefs are merely written arguments and are no part of the pleadings. City of New Orleans v. DiBenedetto, 1962, La.App., 144 So.2d 558. Neither the complaint, the agreed statement of facts, nor the stipulation of the parties carries such information. Our rules of civil procedure do not sanction such loose informational technique in connection with matters determinative of the standing of parties to an action.

The individual plaintiff, whose particular interest in the subject matter of this litigation remains undisclosed, in effect is contesting, in the name of the Attorney General of the State of Maine, the right of the defendant as a de facto officer to hold certain municipal and legislative offices and is further seeking from this Court, through declaratory judgment or other affirmative remedial relief, remittance, to the municipality or the State respectively, of all remuneration received while holding allegedly incompatible municipal and legislative offices.

Since the individual plaintiff makes no claim to either office on the ground that she was elected, and is entitled by law, to the same, we are not involved with the defendant's right originally to hold either office. No private person, under our statutes regulating contested claims to elective office, has standing to oust any holder of the office except the defeated candidate who can show that he himself was actually elected. See, Marden v. City of Waterville, 1967, Me., 226 A.2d 369; Heald v. Payson, 1913, 110 Me. 204, 85 A. 576.

To pinpoint with more precision the limited standing of private persons to litigate official wrongdoing, injunctively or remedially, we may repeat what we said in von Tiling v. City of Portland, 1970, Mr., 268 A.2d 888:

'In examining the status of citizens who seek relief against municipal action, our Court has distinguished between preventive and remedial relief. Individual tax payers of a municipal corporation have not ordinarily the right to sue for remedial relief where the wrong for which they seek redress is one which affects the entire community and not specifically the individuals bringing the action. Where the inquiry claimed is one shared equally by all the members of the community the action must be brought by the Attorney General of the State as representative of not only the particular Plaintiffs who seek remedial relief but the entire community.'

Furthermore, at common law, private individuals without the intervention of the Attorney General of the State cannot, either as of right or by leave of court, institute quo warranto proceedings or action in the nature thereof to test the right of an officer to the public office he holds. Burkett, Petitioner, ex rel. Leach v. Ulmer, 1940, 137 Me. 120, at 122, 15 A.2d 858.

The Attorney General, in this State, is a constitutional officer endowed with common law powers. See, Constitution of Maine, Article IX, Section 11. As the chief law officer of the State, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may, from time to time require, and may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights. See, State v. Lane & Libby Fisheries Company, 1921, 120 Me. 121, at 123, 113 A. 22.

Under his common law powers, the Attorney General, on his own motion or at the relation of any person, but on his official responsibility, can initiate in his discretion proceedings the purpose of which is to inquire by what authority one claiming or usurping a public office can support his claim to the office or sustain his right thereto. The common law method for doing so was by use of the writ of quo warranto or through an information in the nature thereof in behalf of the State. Prince v. Skillin, 1880, 71 Me. 361. The Attorney General is an essential party to the institution and maintenance of such common law process which, no matter what the nature or extent of the interest the relators might have therein, remains subject to his absolute control. State of Maine v. Elwell, 1960, 156 Me. 193, 163 A.2d 342; State of Maine v. Marcotte, 1952, 148 Me. 45, 89 A.2d 308.

With the abolition of the writ of quo warranto (Rule 81, (c) M.R.C.P.), the same relief as was obtainable under common law process must now be sought by appropriate complaint, ¹ which was done in the instant case.

The facts giving rise to this litigation may be summarized as follows:

The defendant was elected as a Representative to the Legislature of Maine from the class towns of Cornish, Limerick, Newfield, Parsonsfield, Shapleigh, and Waterboro in November, 1968 and qualified as such in January, 1969. During the term of the 104th Legislature, to wit, on September 19, 1970, the defendant was elected to the offices of Selectman, Assessor and Overseer of the Poor for the Town of Parsonsfield to fill out the unexpired term of his predecessor who had resigned. He qualified for each municipal office and served therein until the term expired in March, 1972. The claim is made that the defendant forfeited his legislative office when in September, 1970, he accepted the office of Assessor for the Town of Parsonsfield on the ground that the offices are incompatible, and that the defendant should be made to reimburse the State of Maine a proportionate part of the legislative salary and expenses received by him in the performance of his legislative duties as may be apportioned to the period of the legislative term when the defendant had legally forfeited the office.

Following his qualification as an Assessor of the Town of Parsonsfield in September, 1970, the defendant again was elected as a Representative to the Legislature and qualified as a member of the 105th Legislatur...