State ex rel. Costello v. Powers

• Decision Date: 12 June 1953
• Docket Number: No. 2192,2192
• Citation: 80 R.I. 390,97 A.2d 584
• Parties: STATE ex rel. COSTELLO et al. v. POWERS. Equity
• Court: Rhode Island Supreme Court

Page 584

97 A.2d 584

80 R.I. 390

STATE ex rel. COSTELLO et al. v. POWERS.

Equity No. 2192.

Supreme Court of Rhode Island.

June 12, 1953.

Hogan & Hogan, Laurence J. Hogan, Edward T. Hogan, Jr., Thomas S. Hogan, Paul B. McMahon, all of Providence, for petitioners.

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

BAKER, Justice.

This is a petition in equity in the nature of quo warranto under General Laws 1938, chapter 585. It was brought by the state through the attorney general at the relation of Edward J. Costello and the Housing Authority of the City of Pawtucket, Rhode Island, to determine whether the relator Edward J. Costello or the respondent Edward F. Powers is entitled to the office of commissioner of said housing authority.

The petition contains among other things allegations under oath that the above-mentioned housing authority, which was established in July 1939 under the provisions of G.L.1938, chap. 344, as amended, is a body corporate and politic with varied powers, its sole purpose, however, being to provide safe and sanitary dwelling accommodations for persons of low income; that such housing authority consists of five commissioners appointed by the mayor of the city of Pawtucket, each one holding office for a term of five years after his original appointment had expired; that on June 21, 1939 the relator was duly named to serve as commissioner for one year commencing July 14, 1939, at which time he was a resident and duly qualified elector of Pawtucket; and that he has served continuously as commissioner since that date, having been last reappointed July 14, 1950 and having acted as chairman of said housing authority since January 10, 1951.

The petition further sets out that on July 14, 1950 the relator was a resident and duly qualified elector of the town of East Providence in this state but not of the city of Pawtucket; that on December 8, 1952 the mayor of such city caused to be filed in the office of the city clerk a notice declaring in substance that, in view of the fact that the relator had stated under oath in a prior petition for a writ of prohibition that he was not an elector of the city of Pawtucket at that time nor when he was last appointed commissioner on July 14, 1950, a vacancy existed in the membership of the housing authority allegedly held by the relator; that on December 8, 1952 the mayor also purported to appoint respondent as a member of such housing authority to succeed the relator as a commissioner thereof, to hold office until July 14, 1955 and until his successor should be appointed and qualified; that a notice of such purported appointment was filed by the mayor in the office of the city clerk; that respondent allegedly qualified as commissioner of the housing authority by taking an oath of office; and that commencing December 8, 1952 he assumed and pretended to exercise and perform the duties and powers incident to that office.

The parties are not engaged in any dispute as to the facts or the procedure herein but contend that certain questions of law are determinative of the issues raised. It is admitted that G.L.1938, chap. 344, as amended, is the enabling act under the terms of which the Pawtucket housing authority was created and its commissioners appointed, and that no provision thereof expressly requires that they be residents or qualified electors of such city. In this cause the point in issue is whether article IX, section 1, of the constitution of this state applies to the office here in question. That section reads as follows: 'No person shall be eligible to any civil office (except the office of school committee), unless he be a qualified elector for such office.'

The respondent argues broadly that such section applies to the situation which confronts us in the present proceeding; that the office of commissioner of the housing authority is a civil office within the meaning of that term as used in the section in question; that the section applies to such official whether elected or appointed; that since the relator now is admittedly a resident and elector of the town of East Providence and not of the city of Pawtucket he is not eligible to the aforesaid office of commissioner of such housing authority; and that a vacancy exists therein which the mayor has the right to fill.

The relator strongly disputes the validity of respondent's argument and contends that for several reasons, which need not now be discussed in detail, the quoted section of the state constitution does not apply to the issue raised herein and has no bearing on the proper determination of which claimant is entitled to the office in dispute. It is clear that the contentions made by the respective parties regarding the scope and meaning of the quoted section, if fully developed, might conceivably have far-reaching implications. Plainly several difficult questions were raised which required study. After deliberation, however, we have come to the conclusion that the instant cause can properly be decided on a comparatively narrow issue. Obviously the first question for consideration, in view of the facts and circumstances disclosed herein, is whether the office of commissioner of the housing authority is a civil office within the meaning of that term as used in article IX, section 1, of the constitution of this state. In our opinion it is not such an office. It follows therefore that said section has no application in this cause and is of no aid to the respondent.

This court in previous opinions has determined that aldermen, councilmen, auctioneers, duly elected or appointed under our general laws, and members of a school committee are civil officers as that term is used in certain portions of the constitution of this state. See In re...