McCarthy v. McAloon, 2094

• Decision Date: 13 August 1951
• Docket Number: No. 2094,2094
• Citation: 79 R.I. 55,83 A.2d 75
• Parties: McCARTHY v. McALOON et al. Eq.
• Court: Rhode Island Supreme Court

Page 75

83 A.2d 75

79 R.I. 55

McCARTHY v. McALOON et al.

Eq. No. 2094.

Supreme Court of Rhode Island.

Aug. 13, 1951.

John A. O'Neill, Pawtucket, for complainant.

J. Frederick Murphy, City Sol., Raymond F. Henderson, Pawtucket, for respondents.

CONDON, Justice.

This is a bill in equity to enjoin the enforcement of an alleged invalid joint resolution of the city council of Pawtucket which authorizes the chairman of its joint standing committee on finance to approve the borrowing of $4,000,000 in anticipation of taxes. Pending a hearing of the cause on the merits the superior court entered a decree temporarily enjoining said chairman and the two other respondents, the city treasurer and the city, from performing any acts whatsoever under the authority of the resolution. From that decree respondents have appealed to this court.

The appeal is based upon respondents' contention that the trial justice erred in deciding that the joint resolution violated Public Laws 1885, chapter 474, otherwise known as the charter of the city of Pawtucket. Complainant, who has brought suit in his official capacity as mayor of the city and also in the capacity of a taxpayer, contends that the city council was without authority to confer upon the chairman of its joint standing committee on finance the power described in the resolution. He bases that contention substantially on the ground that such power is a portion of the executive power which the charter vests solely in the office of mayor.

The issue thus raised between the parties was the only one tried in the superior court and originally briefed and argued to us. However, at the hearing in this court one of the justices raised the question whether the superior court sitting in equity had jurisdiction to hear and determine the controversy between the parties. Thereupon the parties obtained leave of court to file further briefs on that question. Such briefs were duly filed and it appears therefrom that both sides are in agreement that the superior court had such jurisdiction. However, after examining the bill and the evidence adduced at the hearing on the prayer for a preliminary injunction, we are of the opinion that the superior court sitting in equity had no jurisdiction to hear and determine the question whether the joint resolution was valid, or to enjoin the respondents from performing their official duties in accordance with such resolution.

The bill of complaint alleges in substance that the city council is without authority to confer any power upon the chairman of the joint standing committee on finance to approve the borrowing of money in anticipation of taxes. It also alleges that complainant as a taxpayer will suffer irreparable injury if respondents act under that power; that he is without adequate remedy at law to prevent such injury; and that equity should act to prevent a multiplicity of suits. Complainant, however, does not therein aver in what way such injury will necessarily result nor does he aver that he will suffer any particular loss of property. The essence of his bill appears to be that he, as mayor, is being unlawfully deprived of some of the power of his office and that such deprivation is a public wrong which, at his suit, equity should redress. Incidental thereto it is alleged generally that as a taxpayer he and other taxpayers will indirectly and in some indefinite way suffer injury.

The evidence shows that the city council on June 30, 1950 passed a joint resolution authorizing the borrowing with the approval of the mayor, of $3,000,000 in anticipation of taxes during the city's fiscal year. Before the expiration of that year complainant was elected mayor and a new city council was elected. After the newly elected government took office in January 1951 friction developed between the mayor and the city council. On March 14, 1951 the city council adopted the following resolution:

'Resolved, Section 1. The resolution passed June 30, 1950 authorizing the borrowing of money in anticipation of taxes is hereby amended (a) by striking out the words and figures 'Three Million ($3,000,000) Dollars' and inserting in lieu thereof the words and figures 'Four Million ($4,000,000) Dollars' and (b) by inserting after the words 'with the approval of the Mayor' the words 'or of the Chairman of the Joint Standing Committee on Finance'.

'Section 2. This resolution shall take effect upon its passage.'

The mayor vetoed the resolution and on April 2, 1951 the city council duly passed it over his veto. Promptly thereafter the mayor filed the instant bill of complaint in the superior court. On April 24, 1951 that court entered the decree appealed from.

The complainant relies largely upon Public Laws 1885, chap. 474, sec. 2, for his claim that the power which the city council attempted to confer upon the chairman belongs exclusively to the mayor. That section reads: 'The administration of all the fiscal, prudential and municipal affairs of said city, with the government thereof, except as hereinafter specially provided, shall be vested in one officer to be called the mayor, a council of five aldermen, to be called the board of aldermen, and a council of fifteen persons, to be called the common council, and which board of aldermen and common council together shall be called the city council. No elector shall be eligible to membership in either branch of the city council unless he is qualified to vote upon a proposition to impose a tax and for the expenditure of money in said town.'

On the basis of such allegations and evidence pertaining to the powers of the mayor under the charter, complainant rested his case for equitable relief as a taxpayer suing on behalf of all the taxpayers. In our opinion neither the bill nor the evidence discloses a proper case. A taxpayers' bill of complaint seeking to enjoin enforcement of an alleged illegal statute or ordinance should aver a threatened specific injury to some property right of the taxpayer which is not remote or merely contingent. It should appear that such property right will be immediately adversely and substantially affected by the alleged invalid law. C. Tisdall Co. v. Board of Aldermen, 57 R.I. 96, 188 A. 648. Or as was said in Fletcher v. City of Paris, 377 Ill. 89, 95, 35 N.E.2d 329, 332, complainant must not only set out the invalidity of the law but also 'that he has sustained, or is in immediate danger of sustaining, some direct injury as the result of its enforcement and not merely that he suffers in some indefinite way in common with people generally.' In the absence of such a showing, equity is without power to revise, control or correct a public, political or executive officer in the exercise of his office. 'It never does so at the suit of a private person, except as incidental and subsidiary to the protection of some private right, or the prevention of some private wrong, and then only when the case falls within some acknowledged and well defined head of equity jurisprudence.' Judd v. Town of Fox Lake, 28 Wis. 583, 587.

A good statement of the requisites of such a bill is to be found in 1 Spelling on Injunctions (2d Ed.) § 693, p. 580. It is stated there that 'The injury which will justify relief must be immediately impending and of such a character as ordinarily warrants interference. An allegation amounting only to a speculative opinion as to the consequences of enforcing a void ordinance is not sufficient. The injury must be specified and so pointed out that the court can see that it will be an inevitable consequence of the act threatened and complained of.' In other words, it is well established that the gravamen of such a bill must be that the enforcement of the challenged ordinance would unlawfully increase the taxpayer's burden of taxation or otherwise cause specific injury to his property....