La Belle v. Hazard

• Decision Date: 20 May 1960
• Docket Number: No. 10027,10027
• Citation: 160 A.2d 723,91 R.I. 42
• Parties: Joseph A. LA BELLE v. George N. HAZARD, Town Treasurer of the Town of Narragansett. Ex.
• Court: Rhode Island Supreme Court

Page 723

160 A.2d 723

91 R.I. 42

Joseph A. LA BELLE v. George N. HAZARD, Town Treasurer of the Town of Narragansett.

Ex. No. 10027.

Supreme Court of Rhode Island.

May 20, 1960.

Letts & Quinn, Daniel J. Murray, Jerome B. Spunt, Providence, for plaintiff.

James O. Watts, Town Sol. of Narragansett, Wakefield, for defendant.

ROBERTS, Justice.

This action of assumpsit was brought against the defendant in his capacity as town treasurer of the town of Narragansett to recover salary allegedly due the plaintiff as highway surveyor of that town for the period from February 11 to June 7, 1957. The case was tried before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in the amount of $1,361.85 and costs. It is here on the defendant's exceptions to the decision and to certain evidentiary rulings.

The facts are not in dispute. The plaintiff had held the office of highway surveyor since the general election in November 1954. By virtue of the provisions of Public Laws 1948, chapter 1998, he was to continue in office for a term of two years or until a successor was duly elected and qualified. In the general election of November 6, 1956, plaintiff's candidacy for the office was contested by Joseph A. Monahan, Jr. After the board of canvassers of the town of Narragansett announced the total votes cast for each candidate, an appeal was taken by plaintiff herein to the state board of elections on December 20, 1956. Said board in a written decision notified the board of canvassers on January 30, 1957, that on the basis of ballots cast at the polling place and war ballots LaBelle had 803 votes and Monahan had 797 votes.

Besides the aforesaid votes there remained to be counted civilian absentee and shut-in ballots. These ballots were the subject of a suit between LaBelle and Monahan which was decided by this court in favor of LaBelle. See Powers ex rel. La Belle v. Monahan, 85 R.I. 398, 132 A.2d 97.

On February 8, 1957, the board of canvassers of said town adopted a vote stating, inter alia, that it 'cannot issue a Certificate of Election to either candidate' and voted to transmit this decision to the town council. In a special meeting held on the same day the council appointed Joseph A. Monahan, Jr., to the office of highway surveyor.

Notwithstanding this purported appointment of a successor, plaintiff reported for work as usual on February 11, 1957, the next business day following the council action. He refused to vacate his office on that morning as requested by the town officials, and at three o'clock that afternoon Monahan, the de facto officer, accompanied by the acting town sergeant, appeared and under an apparent threat of arrest plaintiff surrendered the premises.

The plaintiff commenced quo warranto proceedings in the supreme court by petition filed February 28, 1957. He was kept out of office until June 7, 1957, when our opinion in the matter of Powers ex rel. La Belle v. Monahan, supra, was received by the town of Narragansett. The plaintiff was not paid his salary for the period from February 11 to June 7, 1957. During this time the town paid Joseph A. Monahan, Jr., the salary due the highway surveyor. On June 14, 1957, plaintiff presented in writing a claim to the town council in the amount of $1,361.85 for his salary as highway surveyor for the period in question. The town refused to pay this sum and plaintiff brought suit.

The essence of the defense, as we understand it, is that payment was made by the town to a de facto officer and that recourse of the de jure officer, if any, must be against such de facto officer and is based upon principles of public policy, namely, that the office was one which must be filled to carry out the work necessary to the town, and further that the taxpayers, that is, the town, should not be called upon to pay twice for work done once. Both parties have cited numerous authorities in support of their respective positions, but neither party has cited a Rhode Island case, and our examination of the Rhode Island authorities reveals this to be a case of first impression.

Cases in other jurisdictions appear to be in direct conflict. A numerical majority of the courts appear to hold that payment to a de facto officer performing his duties under a claim and color of title to the office effectively discharges the public body from liability to the de jure officer or employee for that period in which the de facto officer performed his duties and received comensation therefor. Board of Auditors of Wayne County v. Benoit, 20 Mich. 176; Coughlin v. McElroy, 74 Conn. 397, 50 A. 1025; 64 A.L.R.2d 1375, 1378. The minority opinion holds that such payment will not preclude recovery by the de jure officer or employee. See Andrews v. City of Portland, 79 Me. 484, 10 A. 458; Baker v. City of Nashua, 77 N.H. 347, 91 A. 872, 64 A.L.R.2d 1375, 1390. Public policy is cited as authority for a decision by courts favoring both views. Ness v. City of Fargo, 64 N.D. 231, 251 N.W. 843.

It is the opinion of this court that where the governmental body is responsible for the situation giving rise to the dispute to office, where it has notice that such a dispute exists, and where the de jure officer in no way acquiesced in his removal from office, he is entitled to the salary of the office regardless of whether a de facto officer has already been paid by the governmental body. The salary of a public official is an incident to the office, and the legal right to receive or enforce...