Gelinas v. Fugere, 1275.

• Decision Date: 20 July 1935
• Docket Number: No. 1275.,1275.
• Citation: 180 A. 346
• Parties: GELINAS v. FUGERE.
• Court: Rhode Island Supreme Court

180 A. 346

GELINAS

v. FUGERE.

No. 1275.

Supreme Court of Rhode Island.

July 20, 1935.

Petition in equity in the nature of quo warranto by Francois Gelinas against Alphonse Fugere.

Petition denied and dismissed.

Edward F. Dwyer, of Woonsocket, and Thomas F. Cooney, of Providence, for petitioner.

Eugene L. Jalbert and Felix A. Toupin, both of Woonsocket, for respondent.

Morris E. Yaraus, City Sol., of Woonsocket, for City of Woonsocket.

PER CURIAM.

This is a petition in equity in the nature of quo warranto, brought under the provisions of General Laws 1923, c. 379, § 1 et seq.

The petitioner, Francois Gelinas of Woonsocket, is making claim to the office of commissioner of public works of that city, and requests the court to confirm his right to that position. The respondent, Alphonse Fugere, the present acting commissioner of public works, contends that he is rightly and lawfully the holder of that office, and contests the right of the petitioner thereto.

From the record, it appears that the act creating the office of commissioner of public works for the city of Woonsocket, providing for his appointment and defining his duties, is found in Public Laws 1929, c. 1498. Section 1 of this chapter was amended by an act passed by the General Assembly at its January session 1935, and approved by the Governor March 12, 1935. Public Laws 1935, c. 2245. This amendment provides in substance that after its passage the city council of Woonsocket by the concurrent action of both its branches, viz., the common council and the board of aldermen, shall elect a commissioner of public works for a certain definite term, and thereafter at regular stated periods. It also provides that the office of the commissioner of public works elected by the concurrent vote of both such branches of the city council in January, 1933, shall cease and determine upon the election and qualification of his successor elected under this amending act. The respondent, Fugere, was elected commissioner of public works of Woonsocket in January, 1933, and is still holding that office, contending that as yet no successor, other than himself, has been lawfully elected by the concurrent action of both such branches of the city council.

The petitioner, Gelinas, rests his claim to the office in question, upon concurrent action taken at certain alleged meetings of the board of aldermen and the common council held on March 23, 1935, at which meetings he purportedly was elected commissioner of public works He also urges that his bond as such commissioner was approved at an adjourned meeting of the board of aldermen held on April 26, 1935.

The legality of all these meetings is questioned by the respondent, who contends that he himself was properly elected to the office in dispute by a vote taken at a meeting of the common council held March 27, 1935, and by a vote of the board of aldermen at a meeting on April 23, 1935, at which latter date he also claims his bond was approved. The petitioner does not question the validity of the meeting of the common council held on March 27, 1935, but does attack the alleged action taken at the meeting of the board of aldermen held April 23, 1935, in respect to the election of the respondent and the approval of his bond.

The first point to be considered relates to the legality of the meetings of the common council and the board of aldermen of March 23, 1935. It is agreed by the parties that on March 22, 1935, the common council of the city of Woonsocket, comprising fifteen members, held a valid meeting and adjourned, subject to the call of its president. From the evidence it appears that on the following morning, Saturday, March 23, 1935, the president of the common council and two of the aldermen, one of them president of the board, met shortly before 9 a. m. at the place in which one of them was employed. Alderman Holland, the president of the board, then informed Mr. Cabana, the president of the common council, that he, Holland, was going to call a special meeting of the board of aldermen for 10 a. m. that day at the city hall, for the purpose of electing a commissioner of public works for the city of Woonsocket, and asked Mr. Cabana to call the common council together at the same time and for the same purpose. The latter expressed his willingness to do this, and asked Mr. Martin, the other alderman present, to request the city clerk to get out the notices for the meeting and have them served. Later Mr. Cabana was told by Alderman Martin that the notices had been sent out.

From the testimony of that alderman, it appears that by telephone he notified the city clerk in regard to the notices and got in communication with the city sergeant. He also stated that he, Martin, would give notice of the meeting by telephone to Alderman Lauzon and to the majority members of the common council. The evidence discloses that each branch of the city council was divided into two distinct factions. In the common council, eight members made up one group and seven the other; in the board of aldermen the division was three and two.

The city sergeant testified that he left the city hall about 9:15 that same morning with nine notices to serve, two of which he had obtained from the city auditor, for Aldermen Doris and Morin, and seven of which he had received from the city clerk, for service on the minority members of the common council. Apparently he had with him no notices for the other three members of the board of aldermen or the other eight members of the common council. It is agreed by the parties, however, that all the members of the board of aldermen and of the common council received a typewritten notice of their respective meetings, and in the case of the members of the board of aldermen all were served by the city sergeant. In serving the notices he made use of an automobile, because some of the persons to be served lived at a considerable distance from the city hall. The notices, one of which is an exhibit herein, served on and received by the members of the common council, were signed in typewriting as follows: "Very truly yours, James H. Holland Acting Mayor."

It is admitted that Mr. Holland did not send out this notice to the members of the common council, and the evidence shows that he did not authorize the use of his name in this connection, that he did not attempt as acting mayor or in any other capacity to call the common council together, and, in fact, was not aware of the nature of the notices to the members of that body till a considerable time later. Mr. Cabana, the president of the common council, testified that he signed no notices to be served on the members of the common council, and that he did not know till afterwards that the notices went out in Mr. Holland's name.

The common council and the board of aldermen each met March 23, 1935, soon after 10 a. m. Each meeting lasted only a few minutes. Eight members attended the meeting of the common council and three members, the meeting of the board of aldermen, a bare quorum in each instance. None of the members whose notices the city sergeant took from the city hall for service attended the meeting of either body. At these two meetings by concurrent vote the petitioner was elected commissioner of public works of the city.

The respondent maintains that this meeting of the common council was improperly called. The petitioner denies this, and relies on the official record of the meeting, which record he claims cannot be attacked collaterally by parol evidence. He urges that the record if inaccurate should first be corrected in an independent proceeding brought for that particular purpose, and, further, that the presumption being that the record is correct, the burden of proof is on the one seeking to change it. We recognize as sound these general principles of law contended for by the petitioner. 19 R. C. L. 903. In our opinion, however, they do not apply to the situation now before us. The record of the meeting of the common council is the record of what transpired at that meeting in the presence of the clerk, and nothing more. The respondent is not questioning the accuracy of the minutes in relation to what happened at the meeting. The fact that the record of the meeting, as prepared by the clerk, starts with the words, "Pursuant to the call of the chair," is not conclusive. The facts relating to the call of the meeting are not part of what took place at the meeting, the latter alone properly constituting the clerk's record in the absence of any further legal requirement. The following language is found in Dillon, Municipal Corporations (5th Ed.) Vol. II, 870: "Thus, if it appears that a special meeting of the city council has been held, it will be presumed, in the absence of proof to the contrary, that it was regularly called." (Italics ours.) Obviously, the presumption here referred to may be rebutted by sufficient contrary evidence. We are of the opinion, therefore, that the respondent may show in this proceeding by parol evidence or otherwise, in what manner and by whom the meeting in question was called, in order that its validity may be determined.

The meeting of the common council held March 23, 1935, was not a regular meeting of that body; neither was it, strictly speaking, a special meeting, nor was it a meeting adjourned to that date. The power to call special meetings of either the common council or the board of aldermen by the provisions of the city charter of Woonsocket is vested in the mayor. Section III, clause 3. It may be questioned whether the common council could properly adjourn to the call of its president, beyond the legislative day of March 22, 1935. McQuillin on Municipal Corporations (2d Ed.) Vol. 2, 403. This action did not constitute an adjournment to a definite date, and to some extent would seem to contravene the provisions of the city charter, which give to the mayor only the power to call special meetings of the city council...