Powers ex rel. Brassard v. Brunelle , 83 R.I. 485 ( 1956 )

Flynn, C. J.

This is a petition in equity in the nature of quo- warranto to determine the title to the office of member or commissioner of the Housing Authority of the City of Pawtucket. At the hearing the relator Alfred J. Brassard, Jr. moved that he be added as an individual petitioner and we have granted that motion.

Such petitioner claims the office by virtue of an admittedly proper appointment and qualification and an alleged illegal removal therefrom by the mayor of said city after a trial and decision on the charge of “misconduct” in his office. The respondent Clovis D. Brunelle claims the same office by virtue of his appointment by the mayor to fill the alleged vacancy caused by the removal therefrom of the petitioner-relator Alfred J. Brassard, Jr. under general laws 1938, chapter 344, §8. The case was briefed and argued before us together with the petition for certiorari entitled Brassard v. McCarthy, 83 R. I. 479, in which our opinion has this day been filed.

In view of the decision in the latter case, wherein the records of the actions complained of were quashed so far as they relate to the actual trial, decision and removal of petitioner Alfred J. Brassard, Jr., we- are bound to conclude that there was no legal vacancy in the office as a result of such trial and removal. Consequently we must grant the petition and claim of the petitioner Alfred J. Brassard, Jr. to the office of commissioner of said housing authority and deny the corresponding claim of respondent Clovis D. Brunelle. However, since the entire record of the proceeding in the other case has not been quashed but leaves it possible to proceed to a trial in accordance with our opinion, the decision and decree in the instant cause will be entered without prejudice to the rights of any party as- they may appear if another trial is held.

Raymond F. Henderson, J. Frederick Murphy, William E. Powers, Atty. Gen., for petitioners. John A. O’Neill, City Solicitor, Harvey J. Ryan, Ass’t City Solicitor, for respondent.

On March 5, 1956, the parties may present for entry by this court a form of decree in accordance with this opinion.