Fitzgerald v. Pawtucket St. Ry.

• Decision Date: 21 May 1902
• Citation: 52 A. 887,24 R.I. 201
• Parties: FITZGERALD v. PAWTUCKET ST. RY.
• Court: Rhode Island Supreme Court

52 A. 887

24 R.I. 201

FITZGERALD

v. PAWTUCKET ST. RY.

Supreme Court of Rhode Island.

May 21, 1902.

Injunction by John J. Fitzgerald against the Pawtucket Street Railway. Injunction granted.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Arnold Green and J. J. Fitzgerald, for complainant.

Edwards & Angell, for respondents.

STINESS, C. J. This bill is brought to enjoin the respondents from doing work under an ordinance purporting to have been passed by the city council of the city of Pawtucket January 6, 1902, upon the ground that the ordinance was not legally enacted. The case is submitted on the bill and testimony taken at the hearing upon a preliminary injunction. The facts, as shown, are that the ordinance was passed by the common council at a meeting held December 16, 1901, and by the board of aldermen December 24, 1901; that a special meeting of the common council was held January 4, 1902, at which the ordinance was returned without the approval of the mayor, and with his objections thereto, whereupon the ordinance, with the message of the mayor, was laid over to the next meeting, which, by adjournment, was to be held on January 6, 1902, at 9 o'clock a. m.; that on said January 6th the president was present at 9 o'clock, but no quorum was present, and at 9:35 o'clock he directed the clerk of the common council to read the roll call of its members, and, as no one answered the roll call, or appeared in the council chamber to transact any business, he declared the meeting adjourned for lack of a quorum. The clerk made record: "An adjourned meeting of the common council was called to order by President Phillips at 9:35 o'clock a. m., January 6, 1902. President Phillips, being the only member present, declared the meeting off for lack of quorum." The record then shows the following entry: "Common Council, January 6, 1902. A meeting of the common council was held January 6, 1902, at 10 o'clock a. m. All of the members were present except President Phillips. Common Councilman Sullivan was elected president pro tern. The records of the meeting held December 18, 1901, and January 4, 1902, were read and approved. Veto of ordinance authorizing the Pawtucket Street Railway Company to lay rails in certain streets was taken from the table, and the ordinance was passed over the veto by roll-call vote of eleven ayes and three noes." The charter of Pawtucket, relating to the organization of the city council (section 17), provides: "The aldermen and common council-men shall meet in the town record building, or in such other place as the city council may determine, on the first Monday of January in each year at 10 o'clock in the forenoon." The charter also provides (section 15) that the tenure of office of officers shall commence on the first Monday in January, "and they shall hold their respective offices until their successors shall be elected and qualified." It also provides that a majority of the members of each branch shall be a quorum.

Several...