Lamb v. Perry, No. 53

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: POWERS
• Citation: 101 R.I. 538,225 A.2d 521
• Decision Date: 13 January 1967
• Docket Number: No. 53
• Parties: George A. LAMB et al. v. Albert PERRY et al. Appeal

Page 521

225 A.2d 521 101 R.I. 538 George A. LAMB et al.
v.
Albert PERRY et al. Appeal No. 53. Supreme Court of Rhode Island. Jan. 13, 1967.

[101 R.I. 544]

Page 522

Sarkis Tatarian, Joseph T. Little, Providence, for plaintiffs.

F. Thomas O'Halloran, City Sol. for the City of East Providence, for defendants.

OPINION

[101 R.I. 539] POWERS, Justice.

These proceedings were commenced in the superior court under the purported authority of the uniform declaratory judgments act, G.L.1956, chap. 30 of title 9.

The plaintiffs, twelve in number, are all taxpayers and residents of East Providence and as such assert status to be heard on the questions propounded for the consideration of the court. In addition two of them are members of the [101 R.I. 540] city council and they assert status as representatives of their constituents.

The petition joins as defendants the other three members of the city council including the presiding officer thereof who as such serves as mayor, the director of personnel, the three members of the personnel board and the acting city manager.

It appears from the pleadings that at a meeting held July 26, 1965 defendant members of the city council voted affirmatively while plaintiff members of the council voted negatively on the adoption of an ordinance in amendment of and in addition to an ordinance entitled 'Civil Service System.' The amendment purportedly created a department of personnel.

The pleadings recite in detail the procedures followed by the majority at the July 26 meeting as well as three prior related meetings, set forth provisions of the city charter relating to the holding of council meetings, and specify provisions of the city charter which are in apparent conflict with the terms of the purportedly adopted ordinance as it relates to the jurisdiction of the personnel department. A certified copy of the challenged ordinance is included in the pleadings.

The petition then prays that the superior court declare and determine the answers to nine questions.

Under the then prevailing practice defendants demurred, but when the cause was heard March 14, 1966 the trial justice, acting under the Rules of Civil Procedure adopted January 10, 1966, treated the demurrer as a motion to dismiss under rule 12(b) of the new rules, granted defendants' motion, and entered judgment accordingly. The case is before us on plaintiffs' appeal therefrom.

Although nine specific questions are propounded by plaintiffs, the trial justice in his decision accurately and concisely compressed them into three categories which we adopt, namely:

[101 R.I. 541] Is the amended ordinance violative of art. XXVIII of amendments to the Rhode Island constitution in that it purports to amend the city charter by means other than those authorized by the constitution?

Is the amended ordinance an unlawful usurpation of the powers of the city manager as set forth in the city charter?

Was the conduct of the majority members and mayor to which resort was had in purportedly adopting the amendment to the Civil Service System ordinance violative of requirements set forth in the city charter?

Citing O'Brien v. Members of Board of Aldermen, 18 R.I. 113, 25 A. 914; McCarthy v. McAloon, 79 R.I. 55, 83 A.2d 75 and Smith v. Brock, 83 R.I. 432, 118 A.2d 336, the trial justice correctly observed that the instant plaintiffs asserting no distinct personal legal interest different from that of the public at large could not maintain the

Page 523

present action unless some new right had been conferred by the...