Chace v. City Council of Providence

• Citation: 36 R.I. 331,89 A. 1066
• Parties: CHACE v. CITY COUNCIL OF PROVIDENCE (two cases).
• Decision Date: 23 March 1914
• Court: United States State Supreme Court of Rhode Island

89 A. 1066

36 R.I. 331

CHACE

v. CITY COUNCIL OF PROVIDENCE (two cases).

Supreme Court of Rhode Island.

March 23, 1914.

Appeal from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Mandamus by Baylies R. Chace against the City Council of Providence to compel petitioner's reinstatement as a collector of milk samples in Providence, and original petition for certiorari to review an order of the City Council removing him from such position. From a judgment of the superior court denying the writ of mandamus, petitioner appeals. Petition for certiorari denied, and appeal from denial of mandamus dismissed, and judgment affirmed.

Cooney & Cahill, of Providence, for petitioner.

Albert A. Baker, City Sol., and Elmer S. Chace, Asst. City Sol., both of Providence, for respondents.

PARKHURST, J. These are two cases between the same parties, and, although they were argued at different times, the questions arising in both cases are so closely related and interwoven that, for convenience, we shall consider and determine both cases in one opinion.

The first case is an appeal from the judgment of the superior court denying and dismissing the petition of Baylies R. Chace for a writ of mandamus to compel the defendant members of the city council of the city of Providence to convene and to remove the suspension of said Chace from the office of collector of samples of milk, and to restore him to said office, from which he had been suspended by the following joint resolution of said city council, passed on July 8, 1913:

"Resolved, that Walter O. Scott, inspector of milk, and Baylies R. Chace, collector of samples, of the city of Providence, be and they hereby are severally suspended from their said respective offices, such suspensions to continue in effect from the date of the passage hereof and until the hearings on the pending charges against said officers respectively shall have been had and the city council shall have taken final action relative to such respective charges;

"And that the superintendent of health of the city is hereby authorized and directed during the period of said suspension of said inspector of milk to supervise the quality of milk sold and delivered in the city of Providence, and to take any lawful steps necessary to prevent and restrain the sale of adulterated milk or milk below the required standard and deemed adulterated under chapter 173 of the General Laws, entitled 'Of Milk,' and said superintendent is hereby authorized to cause all samples of milk collected by any officer of the city, or by any person employed by said superintendent to obtain specimens of the milk being supplied in the city, or received by said superintendent from any residents of the city, to be tested and analyzed, and to notify the chief of police of all violations discovered by him of said chapter 173 of the General Laws; and said superintendent may use any property of the city used by or in charge of the inspector of milk; and the expenses of said superintendent hereunder shall be charged to the appropriation for the health department;

"And that the city clerk is hereby directed forthwith upon the passage hereof to cause copies hereof, duly certified by him, to be served by the city sergeant upon said Walter O. Scott and Baylies R. Chace severally."

Said charges are specified in papers accompanying a joint resolution of said city council, also passed July 8, 1913, entitled "Resolution creating a joint special committee with certain powers and duties relative to charges against members of the milk department of the city," which resolution reads as follows:

"Resolved, that the mayor and Aldermen Moulton and Kelso of the board of aldermen, designated by the mayor, and Messrs. Harden, Phillips and Berth of the common council, designated by the president thereof, be and they hereby are appointed a joint special committee of the city council, with the following powers and duties: Said joint special committee shall hear and receive the evidence presented in support of and against the accompanying charges against two officers of the milk department of the city, namely, Walter O. Scott, inspector of milk, and Baylies R. Chace, collector of samples, which charges, as recommended by the committee on milk to the board of alder-men, have been formulated by the law department; and said joint special committee shall cause said evidence to be taken steno-graphically, transcribed and with any documentary, book or other exhibit evidence in any form received by said committee to be tiled with either branch of the city council, and therewith said committee shall submit to the city council its report relative to such charges and evidence, its findings thereon and its recommendations, for such further action as the city council may determine. Said committee may cause the transcribed evidence to be printed, and printed copies thereof to be also filed as aforesaid for the use of the city council, and may make its report in print.

"In case pending such proceedings any further or other charge or charges shall be made to said committee by any citizen or citizens of the city against said inspector or said collector, or any other member of the milk department, said committee in its discretion may also investigate as to such charge or charges, after giving the accused reasonable notice thereof, and in such case shall also submit the evidence relative thereto and its report thereon to the city council as aforesaid.

"Such officer or officers of the law department as designated by the city solicitor shall prosecute said charges before said joint special committee; and any expenses of said joint special committee relative to its duties hereunder on the approval of its chairman, and the expenses of the law department incident to summoning witnesses, investigating any relevant matters or otherwise relative to prosecuting the charges, on the approval of the city solicitor, shall be paid from the balance of the appropriation made by resolution No. 217, approved May 22, 1913, and any amount of any such expenses in excess thereof from the appropriation for the city council. Forthwith upon the passage of this resolution, the city clerk or one of the deputy city clerks shall cause copies hereof and of the accompanying charges, duly certified by him, to be served by the city sergeant upon said Walter O. Scott and 'Baylies R. Chace severally, and on Monday, July 14, 1913, at 10 o'clock a. m. at the council chamber, city hall, said committee shall convene, and proceed with the performance of its duties hereunder."

The city sergeant of said city, on July 8, 1913, duly served copies of both said resolutions, and of said charges, duly certified by the city clerk of said city on said Scott and Chace severally. Said charges allege grave dereliction of duty on the part of both said Scott and Chace, and include charges against said Chace that he had received money graft or bribes, and are serious, substantial, and specific.

Immediately after the passage of said resolutions and notice thereof, and of said charges, said Chace filed this petition, which was denied by a judge of the superior court after hearing evidence and argument; a decree was entered denying and dismissing the petition, and an appeal to this court was duly claimed and prosecuted, and is now before this court.

The petition sets forth the appointment of the petitioner to the office of collector of samples of milk by Scott, the inspector of milk, and that he was at the time of the passage of the above-quoted resolutions suspending him from office, to wit, on the 8th day of July, 1913, and for a long time prior thereto, a duly qualified collector of samples of milk for the city of Providence, and was and had been for a long time discharging the duties of said office. It then sets forth the passage of the above-quoted joint resolution of suspension, and alleges that the city council has deprived the petitioner of his office room, books, papers, records, etc., and has prevented and still prevents him from exercising the duties of his office. Said petitioner then sets forth his contentions, as follows:

"Fourth. And your petitioner further shows that the office of collector of samples of milk, of which he is the incumbent duly appointed by the milk inspector of the city of Providence, by virtue of chapter 173, General Laws Rhode Island 1909, is a state or public office, and not a city or corporate office, and your petitioner as such collector of samples of milk under and by virtue of section 9, c. 173, General Laws of Rhode Island 1909, is a state or public officer, and not a city or corporate officer, and he avers that said city council was, not only without authority, but wholly without jurisdiction to act in the premises.

"Fifth. Your petitioner further shows that said common council did not elect or appoint your petitioner to his said office, nor participate in his election or appointment, and they had no lawful right, power, or authority to join with the board of aldermen in said purported suspension of your petitioner as above set forth.

"Sixth. And your petitioner alleges that the matter of said purported suspensions was not within the jurisdiction of said city council."

Petitioner then alleges service upon him of a certified copy of said joint resolution of suspension, and the filing by him of a protest, in writing, addressed to said city council, on the ground that said council was without lawful authority or jurisdiction in the premises, and prays for a writ of mandamus as above set forth.

The city charter contains the following provisions:

Section II: "Clause 1. The administration of all the fiscal, prudential and municipal affairs of said city, with the conduct and government thereof, shall be vested in one principal officer to be styled the mayor; one council of ten persons to be styled the aldermen; and one council of forty persons to be styled the...