Casey v. Willey

• Decision Date: 14 May 1959
• Docket Number: No. 2765,2765
• Citation: 151 A.2d 369,89 R.I. 87
• Parties: Calvert E. CASEY v. Grafton H. WILLEY, III. Eq.
• Court: Rhode Island Supreme Court

Page 369

151 A.2d 369

89 R.I. 87

Calvert E. CASEY v. Grafton H. WILLEY, III.

Eq. No. 2765.

Supreme Court of Rhode Island.

May 14, 1959.

Raymond E. Jordan, William A. Curran, Providence, for petitioner.

Jacob S. Temkin, Samuel A. Olevson, Providence, for respondent.

J. Joseph Nugent, Atty. Gen., as amicus curiae.

POWERS, Justice.

This is a petition in equity in the nature of quo warranto to determine the respondent's claim of title to the office of clerk of the superior court for the counties of Providence and Bristol. The petition was brought in this court pursuant to the provisions of General Laws 1956, § 10-14-1, and was heard on the following agreed statement of facts:

'1. In January, 1953 Matthew M. McCormick was duly appointed clerk of the superior court for the counties of Providence and Bristol, pursuant to General Laws (1938) C. 489 s. 4, Clause A; and duly qualified.

'2. Matthew M. McCormick was not re-appointed to said office, but after February 1, 1955, and until his decease on March 12, 1959, continued to hold said office under that sentence of General Laws (1938) C. 489, s. 4, Clause A, and General Laws (1956) 8-4-5, which provides, 'The persons so appointed shall hold office until the first day of February in the second year next after their appointment and until their successors are appointed and qualified.'

'3. Matthew M. McCormick deceased in office on March 12, 1959.

'4. On March 13, 1959, petitioner was duly appointed clerk pro tempore pursuant to General Laws of Rhode Island (1956) 8-4-12, duly qualified as such, and assumed the office and functions of clerk pro tempore.

'5. On March 17, 1959, the governor of this State, acting pursuant to General Laws (1956) 8-4-6, appointed respondent clerk of said superior court to fill the vacancy in said office. Respondent has since performed all acts necessary to qualify for said office if his said appointment were made under proper statutory authority.

'6. On March 17, 1959 respondent duly claimed the office to which he had been appointed, and purported to act as clerk until restrained by order of this Honorable Court. Said order was issued at the instance of petitioner, who had been in the exercise of his office of clerk pro tempore, and who refused to recognize the validity of respondent's appointment on the ground that it had not been made in the manner provided by General Laws of Rhode Island (1956) 36-1-10.'

The parties further agreed that the general assembly was in session at all times material to the issue before us.

The attorney general of Rhode Island was permitted to intervene as amicus curiae on the ground that a public interest was involved.

The petitioner does not contend that his appointment as clerk pro tempore by the presiding justice of the superior court pursuant to G.L.1956, § 8-4-12, forecloses the right of legally constituted authority to fill the vacancy in the office of the clerk resulting from the death of Matthew M. McCormick for the term of the office expiring on February 1, 1961. Such a contention would be untenable. Section 8-4-12 provides: 'In case of the death, resignation absence, inability, or refusal to serve of any of said clerks, the chief justice, or the presiding justice of the court in which the same occurs, may appoint a clerk pro tempore, who shall hold his office until the clerk shall have returned or the inability shall have been removed or another clerk shall have been appointed to fill such vacancy, and shall have qualified.'

It is clear from a comprehensive appreciation of the several and various contingencies which might arise, so as to leave the court without someone to function in the absence of the clerk, that the legislature intended to provide an expeditious method for the appointment of a temporary incumbent. Such an incumbent, however, although clothed with the authority to perform the functions and duties of the clerk and receiving the emoluments therefor during his tenure, would be without permanent status.

This conclusion has historical support. The first enactment of provisions akin to § 8-4-12 that we have been able to discover appears in Public Laws 1844, page 95, 'An Act establishing Courts of Common Pleas.' The 1844 statute also contains the first provision for the appointment of clerks by the general assembly in grand committee, a method and authority which were not surrendered by the legislature to the executive until 1936.

The legislature quite obviously recognized that for a considerable portion of the year it would not be in session to fill a vacancy arising in the office of the clerk and thus provided a method for the appointment of a temporary incumbent to the end that the sessions of the court would not be disrupted pending the reconvening of the general assembly.

In December 1936 a special session of the legislature enacted chapter 2441, now G.L.1956, §§ 8-4-5 and 8-4-6. Section 8-4-5 substituted the appointment of superior court clerks by the governor, under certain conditions, for the previous method of election by the grand committee. Section 8-4-6 provided for the filling of a vacancy in said office by the governor. The exact language of that section will be hereinafter fully set forth.

It is not seriously argued that § 8-4-12 was repealed by the enactment of P.L.1936, chap. 2441, and in our opinion such an argument would be without merit for reasons which we will discuss in connection with petitioner's contention that respondent's purported appointment by the governor was invalid.

We are of the opinion that on the death of the incumbent Matthew M. McCormick a vacancy occurred which might be properly filled by the appointment of a clerk pro tempore by the presiding justice under the provisions of § 8-4-12. The parties are agreed that the presiding justice properly exercised his authority under § 8-4-12 and that petitioner was duly appointed clerk pro tempore. It follows that petitioner is still the legal incumbent of the office of clerk pro tempore unless respondent's appointment by the governor resulted in filling the vacancy as contended by respondent.

The statutory authority invoked by the governor and on which respondent principally relies for the validity of his appointment, namely, § 8-4-6, provides: 'In case of a vacancy in the office of clerk of the superior court for the counties of Providence and Bristol, or in the office of clerk of the superior court of either of the counties of Newport, Washington or Kent, from any cause, the governor shall appoint some person to fill such vacancy for the balance of the unexpired term, and until his successor is appointed and qualified.' (Italics ours.)

The petitioner contends that respondent's appointment by the governor was defective for the reason that Matthew M. McCormick, not having been duly appointed in January 1959, was at the time of his death a mere holdover and no unexpired term existed as required by § 8-4-6. However, respondent argues that an unexpired term is not a prerequisite to a valid exercise by the governor of his right to fill a vacancy within the meaning of the section on which he relies.

The respondent argues that the original enactment of the provisions of §§ 8-4-5 and 8-4-6 demonstrates that whether a vacancy occurs during an unexpired term or otherwise is not material. Section 8-4-5 provides: 'In the month of January in each odd-numbered year, the governor, with the advice and consent of the senate, shall appoint a clerk of the superior court for the counties of Providence and Bristol, and a clerk of the superior court for each of the counties of Newport, Washington and Kent. The persons so appointed shall hold office until the first day of February in the second year next after their appointment and until their successors are appointed and qualified.'

These two sections were first enacted by P.L.1936, chap. 2441. The provisions of § 8-4-5 were set forth in section 1 thereof as clause A of sec. 6, and the provisions of § 8-4-6 as clause B. The respondent concludes that the clear intendment of the legislature in enacting chap. 2441 was to vest in the governor the right to appoint superior court clerks, subject to confirmation by the senate, for the term commencing February 1 in each odd-numbered year with exclusive authority to fill vacancies resulting from any cause.

The petitioner argues that the close relationship of §§ 8-4-5 and 8-4-6, as originally constituting two separate paragraphs of the same section, serves to emphasize his contention that the legislature intended § 8-4-6 to apply only to a vacancy resulting during the term of an incumbent appointed pursuant to § 8-4-5.

It is to be observed that prior to the enactment of P.L.1936, chap. 2441, superior court clerks were elected in grand committee for a three-year term which overlapped that of the governor. The effect of the 1936 statute was to synchronize the term of the governor and the term of the superior court clerk so as to give a newly elected governor the opportunity to appoint a clerk whose term would be virtually simultaneous with his own. Thus, petitioner argues that the authority of the governor to fill a vacancy would apply only where the deceased or retiring incumbent was one appointed by him. He contends that § 8-4-6 was not intended to apply in any other situation.

On the other hand, respondent argues that the words 'for the balance of the unexpired term' merely indicate that an appointee under § 8-4-6 may serve only so long as the prior incumbent could have served, not for a new, full term. He cites People ex rel. v. Osborne, 7 Colo. 605, 611, 4 P. 1074, and State v. Lane, 16 R.I. 620, 18 A. 1035....