City of Newport v. Horton

• Decision Date: 02 August 1900
• Citation: 22 R.I. 196,47 A. 312
• Parties: CITY OF NEWPORT et al. v. HORTON et al.
• Court: Rhode Island Supreme Court

47 A. 312

22 R.I. 196

CITY OF NEWPORT et al.

v. HORTON et al.

Supreme Court of Rhode Island.

Aug. 2, 1900.

Petition in the nature of quo warranto by the city of Newport and others against Jeremiah W. Horton and others to try the title to the office of chief of police of the city of Newport, to which the defendants demurred. Demurrer sustained.

J. Stacy Brown, City Sol., Arnold Green, and Amasa M. Eaton, for plaintiffs.

Clark Burdiek, Chas. A. Wilson, and Wm. P. Sheffield, Jr., for defendants.

STINESS, C. J. In May last the general assembly passed an act to establish a board of police commissioners for the city of Newport. Pub. Laws, c. 804. It provided for the appointment by the governor, with the advice and consent of the senate, of three commissioners, who should be qualified electors of Newport, with terms of office of two, four, and six years. This board has authority to appoint, remove, organize, and control the chief of police and the police force generally; to make rules and regulations therefor; to have full charge of liquor licenses and the licensing of pawnbrokers, billiard and pool rooms, hawkers and peddlers, shows, and a large list of other matters which require more or less police supervision. The board is authorized to expend a sum not exceeding $36,000, and such further sum as the city council of Newport may appropriate, for said purposes, to be paid by the city. Power is also given to the board to make ordinances for the management of the police, with power to impose penalties of fine and imprisonment, to summon witnesses, to punish for contempt, and to do many things which need not now be specified. The board was duly appointed by the governor, and organized under this act, and it appointed Benjamin H. Richards as chief of police in place of Pardon S. Kaull, who had been elected to that office for the term of one year by the city council of Newport in January last. Said Kaull claims the office under said election, and, under Gen. Laws, c. 263, this petition is filed in the nature of quo warranto, to determine the title to the office.

The ground upon which the petition rests is that the act appointing the commission is unconstitutional. Several grounds of unconstitutionality are urged,—such as the power to punish for contempt, to compel the production of books and papers, the exercise of legislative powers, etc., which need not be considered at this time. The single question presented in this petition is whether the general assembly has power to create a police commission, to be appointed by the governor, which can appoint a chief of police. If it has such power, it is quite immaterial to this question what its power may be in regard to other matters which are clearly separable and distinct from that. A statute may be void in one part and valid in other parts, unless the parts are so intimately connected that one cannot stand without the other. In Penniman's Case, 103 U. S. 714, 26 L. Ed. 602, which went up from this court, the first section of the act, alleged to be unconstitutional, provided that no person should thereafter be imprisoned, or be continued in prison, nor his property be attached upon an execution issued on a judgment against a corporation of which such person was a stockholder. This was contrary to the law existing at the time when the creditor obtained a Judgment against the corporation in which Penniman was a stockholder, and the objection was that it was invalid because it impaired the obligation of a contract. The case, however, only involved the release of Penniman from imprisonment. The court therefore said: "It is only necessary to consider that part of section 1 of the act (Laws 1877, c. 600) which relieves a party from imprisonment upon the execution. Penniman invoked that provision, and no other. He was merely relieved from imprisonment, and it is that, and that only, of which Tweedle complains." The court then quoted from Keokuk Northern Line Packet Co. v. City of Keokuk, 95 U. S. 80, 24 L. Ed. 377, in which the court said: "Statutes that are constitutional in part only will be upheld so far as they are not in conflict with the constitution, provided the allowed and prohibited parts are severable. It may be conceded that the ordinance is too broad, and that some of its provisions are unwarranted. When these provisions are attempted to be enforced, a different question may be presented." In State v. Snow, 3 R. I. 64, where a part of the act in question, which related to another offense than that charged against the defendant, was claimed to be invalid. Judge Brayton said that it was a very wholesome rule that no one can take advantage of the unconstitutionality of an act who has no interest in and is not affected by it. This language related to provisions of the act which did not affect the party who objected to them in the case before the court. The rule as stated in Cooley, Const. Lim. (6th Ed.) 214, is that a law will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the constitution forbids. See, also, State v. Amery, 12 R. I. 64; 6 Am. & Eng. Enc. Law (2d Ed.) 1088, note 3. The question in this case being that of title to the office of chief of police of Newport, it is quite immaterial to the decision of that question whether the police commission can lawfully exercise other powers which are conferred upon it by the act, and which are in no way involved in the case presented. Such powers are clearly severable from that of a police appointment.

We are not called upon to consider, nor can we properly do so, any question of unconstitutionality in the act before us except so far as it affects the power of appointment of a chief of police and the control of the police department. If the commission had the power to appoint a chief of police, that settles this case, and it is of no consequence what their powers may be in other respects. Of course, we understand that the argument on this line was pressed by the petitioners in order to show that unconstitutionality permeated the whole act; but we cannot give effect to such an argument, because it is very clear that the parts are not inseparable, and hence that our decision can only rest upon the parts that affect this case. Confining our attention, then, to the provisions of the constitution which affect the power of the general assembly to control the police of towns and cities, the petitiouers claim that the act in question infringes the rights of local self-government, fundamental and historic, in the state of Rhode Island, enjoyed and preserved from the settlement of its first four towns to the adoption of its constitution, which the constitution recognizes, and on which it is built; and that this right is one of the reserved rights retained by the people under Const, art. 1, § 23, and Id. art. 4, § 10. The question has been ably and elaborately argued on this line. The major premise is that four independent towns, governing themselves in all respects, formed the colony, in doing which they gave up none of their rights of self-government; that they never had given them up, and hence such rights are retained by the people. We readily concede that the settlements in Providence, Portsmouth, and Newport were unique. Unlike other colonies, they were made before and without a charter of any kind. The settlers came upon land to which the crown of England had no title. They bought it of the Indians. They organized their governments. In Providence the organization was called a "town," in Portsmouth a "bodie politick," in Newport a "plantation." Whatever the name they chose, they were in fact independent sovereignties. They had no superior and no subordinate. The inhabitants of Warwick did not recognize the authority of these self-constituted governments, and did not organize at all until after the first charter had been obtained from the English parliament in 1643—44, and the colony had been organized under it in 1647. The form of government adopted under that charter was a federation of towns, rather than a colony. Legislation originated in the towns, and the general assembly had simply a power of approval or veto. Local self-government was preserved to its full extent. The reason for this was stated in a charter granted to Providence in March, 1648 (1 Col. Rec. R. I., 214): "Whereas the said towns of Providence, Portsmouth, Newport and Warwick are far remote from each other, whereby so often and free intercourse of help, in deciding of differences and trying of causes and the like, cannot easily and at all times be had and procured of that kind is requisite," therefore full power to govern and rule themselves is given, "always reserving to the aforesaid general assembly power and authority to dispose the general government of that plantation as it stands in reference to the rest of the plantations, as they shall conceive, from time to time, most conducing to the general good of the said plantations." The charter of 1663 made a marked change in the conduct of public affairs. It concentrated power in the general assembly. It gave that body authority to admit freemen; to elect and constitute such offices and officers as they shall think requisite for the ordering and arranging the affairs of government; to make such laws as should seem to them meet for the government and ordering of the lands granted and the people inhabiting the same; to regulate the way and manner of all elections to offices; to prescribe and limit the numbers and bounds of cities and towns, as well as to do many other things, quite inconsistent with the powers reserved to towns under the first charter. The action of the assembly was in accordance with the increased power. For example, in March, 1666, it established town councils, to consist of six members, including the assistants from the town, and, as there were three assistants from Providence, elected by general vote, one-half of its...