City of Providence v. Moulton

• Decision Date: 25 April 1932
• Docket Number: No. 1028.,1028.
• Parties: CITY OF PROVIDENCE et al. v. MOULTON et al.
• Court: Rhode Island Supreme Court

160 A. 75

CITY OF PROVIDENCE et al.

v. MOULTON et al.

No. 1028.

Supreme Court of Rhode Island.

April 25, 1932.

Proceeding in nature of quo warranto by the City of Providence and others against Benjamin P. Moulton and others to determine title of individual petitioners to offices claimed by them.

Petition denied and dismissed.

John C. Mahoney, City Sol., McGovern & Slattery, and James A. Higgins, all of Providence, for petitioners.

Benjamin M. MeLyman, Atty. Gen., Sigmund W. Fischer, Jr., Asst. Atty. Gen., and Clifton I. Munroe, of Providence, for respondents.

Edwards & Angell and Hinckley, Allen, Tillinghast Phillips & Wheeler, all of Providence, Special Counsel, amici curiæ.

SWEENEY, J.

This petition in equity in the nature of quo warranto is brought in this court under authority of chapter 379, Gen. Laws 1923, to determine the title of the individual petitioners to certain offices claimed by them.

Petitioners attack the validity of chapter 1710, Pub. Laws 1931, which took effect April 10, 1931. The act is entitled: "An Act Creating a Board of Public Safety for the City ot Providence and Making an Appropriation Therefor." The act provides that there shall be a board of public safety for said city which shall consist of three of its electors. The governor is required to appoint the members of said board with the advice and consent of the Senate. Three of the respondents are the duly appointed and qualified members of said board, and the fourth respondent is the public service engineer appointed by said board.

The act vests in said board full and complete control and management of the police, the fire, and the public service engineer departments of said city, and all powers vested in the mayor, board of aldermen, the city council, the board of police commissioners, the board of fire commissioners, the chief of police, the chief of the fire department and the public service engineer relative to said departments, and the control of all property used by the police and the fire departments.

Upon the qualification of the members of the board and the public service engineer, they proceeded to execute the duties of their respective offices, and thereby excluded the individual petitioners from the offices formerly held by them as police commissioner, fire commissioner, and public service engineer.

Petitioners, being thus aggrieved, brought this petition, praying that, for the reasons therein stated, the act creating said board of public safety be declared unconstitutional and void, that the appointment of the respondents be declared invalid, and that petitioners be adjudged entitled to the offices to which they were elected and from which they had been ousted by the respondents.

Petitioners allege several reasons why they claim the act creating said board of public safety is unconstitutional and void. These reasons are substantially the same as those alleged in the cases of the City of Newport v. Horton, 22 R. I. 196, 47 A. 312, 50 L. R. A. 330, and Horton v. City Council and City Treasurer of Newport, 27 R. I. 283, 61 A. 759, 1 L. R. A. (N. S.) 512, 8 Ann. Cas. 1097. In these cases this court held that the act providing for the establishment of a state-appointed board of police commissioners for said city was not unconstitutional. The general form and phraseology of that act has been closely followed in the act now before the court. The present petition could be properly decided under the law as stated in the Horton Cases, but, as the control of the fire department and the public service engineer was not involved in the Horton Cases, we will again consider the questions presented.

Section 19 of the act appropriates $35,000 of the money in the state's treasury for the purpose of paying the salaries and legal expenses of the board during the year ending June 30, 1932. Petitioners claim that this appropriation is for a local purpose. They allege that the act was not legally passed be cause it did not receive the assent of two-thirds of the members elected to each branch of the General Assembly, which is necessary in order to appropriate money for a local purpose, as required by section 14, art. 4, of the Constitution. Petitioners contend that, because this appropriation was not lawfully made, the whole act must be declared unconstitutional. The contention cannot be sustained. The question of the validity of this section does not affect the right of the petitioners to the offices claimed by them. This is an independent appropriation. This section could be stricken from the act, and the remaining sections would be complete in themselves and capable of being executed in accordance with the apparent legislative intent. In an opinion of this court to the House of Representatives, in the Matter of Appropriation Bill, 45 R. I. 289, 120 A. 868, 869, this court said: "In accordance with well-settled principles of constitutional law and statutory construction early adopted and consistently followed in this state, we would not declare the whole act invalid, but would strike out the independent appropriations for private purposes as not passed in accordance with constitutional requirement, and would approve the rest of the act as valid and constitutional." A statute which is unconstitutional or void in part may still be valid as to the residue, unless the parts are so intimately connected that it cannot be supposed that one part of the statute was intended to be enforced independently of the other. State v. Amery, 12 R. I. 64; State v. Copeland, 3 R. I. 33; State v. Snow, 3 R. I. 64.

Two other reasons alleged by petitioners why said act is unconstitutional are: (1) Section 5 authorizes said board to summon witnesses, administer oaths, and punish any contempt of its authority. Petitioners claim this section confers judicial powers upon the board in violation of article 3 of the Constitution, which distributes the powers of government into three departments, legislative, executive, and judicial, and of article 10, § 1 which states that the judicial power shall be vested in one Supreme Court and such inferior courts as the General Assembly may from time to time ordain and establish. (2) Sections 6, 7, and 9 confer legislative powers upon subordinate executive officers in violation of said article 3.

We cannot properly consider these constitutional questions because petitioners are not adversely affected by them. The question presented by the petitioners is in regard to their right to hold the offices from which they have been ousted by respondents. In Newport v. Horton, supra, this court declined to consider similar reasons alleged for holding the act unconstitutional because they were not involved in the single question presented to the' court. No principle of law is more firmly established than the one that he who would suecessfully assail a law as unconstitutional must show that the feature of the act complained of operates to deprive him of some constitutional right. Aikins v. Kingsbury, 247 U. S. 484, 38 S. Ct. 558, 62 L. Ed. 1226; Sackett v. Paine, 46 R. I. 439, 128 A. 209; Joslin Mfg. Co. v. Clarke, 41 R. I. 350, 103 A. 935; 12 C. J. 760.

When the board attempts to punish some person for contempt or prosecute a person for violation of its rules and orders its authority in these particulars may properly be questioned by the person affected.

Petitioners also allege that said act, and particularly sections 6, 7, 8, 9, and 10 thereof, are unconstitutional because they infringe the right of local self-government preserved to the city by article 1, § 23, of the Constitution, and also because they deprive said city and the people thereof of the control and management of their private proprietary property, undertakings, and affairs.

Section 23, cited by petitioners as the foundation for their claims, reads as follows: "The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people." The "foregoing rights" referred to in the preceding sections are those usually found in a "Bill of Rights."

The power of the General Assembly to enact a law placing the control and management of the police department of a city in a commission to be appointed by the Governor was upheld by this court in the Horton Cases, supra. It was then claimed, as now, that the act was unconstitutional because it infringed the right of local self-government. The court considered the claims at length, and held that the right of the city to the sole control of its police force had not been so reserved as to bring it within article 1, § 23, or article 4, § 10, of the Constitution, and that the act was not unconstitutional on the ground of interference with the right of the city to local self-government so far as the appointment of a chief of police by the state-appointed commissioners was concerned. In its opinion, 22 R. I. at page 204, 47 A. 312, 314, 50 L. R. A. 330, the court said: "Towns and cities are recognized in the constitution, and doubtless they have rights which cannot be infringed. What the full limit and scope of those rights may be cannot be determined in the decision of this case. The court cannot properly go beyond the question before it. We assume that the towns and cities in this state have the same rights which towns and cities have in other states, under the prevalent form of state government. Our inquiry, therefore, is whether the establishment of police authorities by the state infringes the rights of self-government."

Counsel for petitioners argue that this language shows that towns and cities have rights of local government which the General Assembly must respect, and claim that the act creating the board of public safety is far more drastic and inclusive than the act creating the Newport police commission and infringes the right of local government reserved to the cities, and especially that the General Assembly had no power to appoint a commission to exercise control of the...