Black v. Cum Mings

• Decision Date: 24 April 1939
• Docket Number: No. 1438.,1438.
• Citation: 5 A.2d 858
• Parties: BLACK et al. v. CUM MINGS et al.
• Court: Rhode Island Supreme Court

5 A.2d 858

BLACK et al.

v. CUM MINGS et al.

No. 1438.

Supreme Court of Rhode Island.

April 24, 1939.

Proceeding in equity by A. Robert Black and others against Mortimer G. Cummings and others in the nature of quo warranto, wherein the petitioners sought to have the court order a new election in a certain voting district in the town of North Providence.

Hearing on the merits denied.

John L. Curran, of Providence, for petitioners.

Raymond E. Jordan, Mortimer G. Cummings, John A. Notte, Jr., and Theodore Jarre, all of Providence, for respondents.

CONDON, Justice.

This is a petition in equity in the nature of quo warranto. The petitioners were severally candidates for the office of town councilman in the town of North Providence, and for certain other town offices in that town at the general election held on November 8, 1938. The respondents, who were also candidates for the same offices at that election, and who were declared elected, assumed the offices before the bringing of this petition and are now claiming and occupying them. It is alleged by the petitioners in their petition that the respondents are not entitled to the offices, because of fraudulent and illegal acts committed at the election in voting district No. 2 of the town; and they pray that this court order a new election in that district.

The petition is accompanied by an affidavit of counsel for the petitioners that the attorney general declined to bring the petition on behalf of the state. We assume that in the performance of his official duties he refused to allow the petition to be thus brought for reasons that appealed to his judgment at that time. Thereupon the petition was filed with us and we ordered citation to issue to the respondents, notifying them that the petitioners would be given an opportunity on January 27, 1939, to show cause why their petition should be heard on its merits. This citation was duly served on the respondents and also on Ralph Cuculo, Raoul Luminello and Joseph R. Paquette, who were described in the petition as the members of the town council duly elected at the election held on November 3, 1936, who were not renominated and who would be entitled to hold their offices until their successors were elected and qualified if the election held on November 8, 1938 were declared a nullity.

By agreement of the parties, the hearing was continued to February 6, 1939, on which date they were fully heard in oral argument and were given permission to file briefs within ten days. The parties, however, did not file their briefs until February 21, 1939.

The petitioners contend that their petition should be heard on its merits without regard to common law rules governing proceedings in quo warranto, because the election in voting district No. 2 was so tinged with fraud as to affect more votes than the majority by which the respondents were declared elected; but they do not contend that the proof of such fraudulent voting would result in their own election, nor do they make such an allegation in their petition. Nevertheless, they argue that this court should exercise its discretion and hear this petition on its merits, because it is a matter that concerns not a single litigant but also the public, and because there is no other adequate and expeditious relief available to them.

Two other contentions pressed by the petitioners, namely, that the respondents are properly joined in one petition and that this court has jurisdiction under the constitution and the statute to grant the relief prayed for, may be conceded in a proper case without passing specifically upon the question as to all of the respondents here. There is no question of the right generally to join respondents in one petition, where the titles by which they all hold their offices depend upon identical matters of law or fact. State v. Kearn, 17 R.I. 391, 22 A. 322, 1918. G. L.1923, chap. 379, sec. 2. See, also, 51 C.J. 341, § 51. In a proper case there can also be no question of the jurisdiction of this court to entertain, in its discretion, a petition in equity in the nature of quo warranto brought by a private person in his own name and without the intervention of the attorney general. Hoxsie v. Edwards, 24 R.I. 338, 53 A. 128; Gainer v. Dunn, 29 R.I. 232, 69 A. 336; Clarke v. Joslin, 34 R.I. 376, 83 A. 843; Horton v. Sullivan, 35 R.I. 242, 86 A. 314; Toupin v. Marceau, 55 R.I. 265, 180 A. 353; McGroarty v. Ferretti, 56 R.I. 152, 184 A. 508. The question here is: Does the instant petition allege, at least prima facie, a proper case ?

The respondents contend that it is not a proper case to be brought by the petitioners as private persons in their own names. They also make three other contentions which raise serious questions, as to whether all necessary parties have been made respondents and as to several other matters; but we shall not consider them, as the primary question on this order to show cause is whether or not we should allow a hearing on the merits. If such a hearing were allowed, all of these questions could then be regularly raised.

On the allegations of the petition and after carefully considering petitioners' argument and briefs, we find no cause shown which would warrant exercising our discretion to allow a hearing on the merits. The petitioners fail at the very outset to justify their claim to be heard. They do not aver in their petition that the title to the offices now held by the respondents is rightfully in them, the petitioners. They do not even claim such title would be in themselves if they were successful at the hearing and proved the allegations in their petition which would destroy the title of the respondents. The most that they claim is that the election of November 8, 1938, in voting district No. 2 should be declared a nullity, and that this court should order a new election in that district, but only for the offices for which they were candidates at that election.

They admit in their petition that, if such election is declared a nullity, no decree could be made ousting four of the respondents, namely, Cummings, Sgambato, Galligan and Levesque. This is so because they, having been duly elected at the election held on November 3, 1936, would be entitled to hold over until their successors were elected and qualified. They also admit that three other former members of the town council, duly elected at the election of November 3, 1936, namely, Joseph R. Paquette, Ralph Cuculo and Raoul Luminello, who are not formally alleged in the petition to be respondents, would also each hold over in the office of town councilman. These three persons, it is admitted, are now out of office and are not making any claim to these offices. Notification of the issuance of the citation was given to them however, as the petitioners prayed that these persons, as members of the town council who would hold over, if and when the election of November 8, 1938, were declared void as a result of the instant proceedings, be enjoined from proceeding to choose certain town officers as by law provided. Obviously this prayer is an anomaly in a petition in quo warranto and there is grave question of its propriety but, in view of the conclusion which we have reached on the main question before us, we shall not pause to inquire further into this matter.

It is manifest from the petition that these petitioners are seeking by this proceeding to redress, not a private wrong, but a public wrong. Clearly, they are not seeking to enforce a personal right to be inducted into the offices for which they were candidates at the election on November 8, 1938. The petitioners' purpose is merely to oust the respondents from the offices in question. Apparently the petitioners expect, by proof of their allegations, to show only that the entire election in voting district No. 2 was conducted in such an atmosphere of fraud and irregularity on the part of certain election officials and others as to render the whole election in that district void.

A brief discussion of the function of this court in quo warranto proceedings will, we think, be helpful to a proper understanding of our refusal to allow the instant petition to be heard on its merits. At the threshold of this discussion it is important to keep in mind that the writ of quo warranto is not a writ of right but rests in the discretion of the court. This is the practice that has long obtained in this state. State v. Brown, 5 R.I. 1. In State v. Pawtuxet Turnpike Co., 8 R.I. 521, at page 523, 94 Am.Dec. 123, this court says: "An information in the nature of a quo warranto cannot be filed by a private individual without leave, which the court may, at its discretion, either grant or refuse."

In this respect a petition in equity in the nature of quo warranto stands on no different basis. Although it has been said by this court that the proceeding has in modern times assumed the character of a private action, Higgins v. Tax Assessors of Pawtucket, 27 R.I. 401, 63 A. 34, it is still necessary in this state to institute the proceedings in the name of the state, where only the public interest is involved.

This is the rule in almost all the states, except where, by statute, provision has been specifically made to the contrary. One authority on the subject some years ago observed that "probably there are no exceptions to the rule that the proceeding must be instituted and prosecuted in the name of the state, or of a public officer representing the sovereignty." 2 Spelling on Extraordinary Relief, 1436.

This rule is generally recognized by the cases as a necessity under considerations of public policy. "It would be detrimental to the public welfare and highly inexpedient that title to a public office should be put in question whenever any private citizen sees fit to make the assault." Jenkins v. Congleton, 242 Ky. 46, 49, 45 S.W.2d 456, 457. "The remedy is, therefore, a public one, carried on in the name of the public prosecutor by an...