185 A. 686 (R.I. 1936), 1311, Higgins v. Green

Docket Nº1311.
Citation185 A. 686, 56 R.I. 330
Opinion JudgeCAPOTOSTO, Justice.
AttorneyJohn R. Higgins and Sidney Silverstein, both of Woonsocket, for complainant. John P. Hartigan, Atty. Gen., and John E. Mullen, Fourth Asst. Atty. Gen., for respondents.
Judge PanelMOSS, Justice (concurring).
Case DateJune 20, 1936
CourtSupreme Court of Rhode Island

Page 686

185 A. 686 (R.I. 1936)

56 R.I. 330




No. 1311.

Supreme Court of Rhode Island

June 20, 1936

Page 687

John R. Higgins and Sidney Silverstein, both of Woonsocket, for complainant.

John P. Hartigan, Atty. Gen., and John E. Mullen, Fourth Asst. Atty. Gen., for respondents.


The complainant, John R. Higgins, in his individual capacity as a taxpayer of the city of Woonsocket in this state, brought a bill in equity against certain named respondents "individually and collectively, as members of 'A Board to Purchase Voting Machines,' " appointed under Public Laws 1935, c. 2195, and the general treasurer and the secretary of state of this state, to enjoin them from executing a contract for voting machines with the Shoup Voting Machine Corporation, which was also named as a respondent. The cause was heard by a justice of the superior court on the complainant's prayer for a preliminary injunction. At the conclusion of this hearing, the trial justice denied the preliminary injunction and, on motion of the Attorney General, who appeared for the state, he dismissed the bill and entered a decree to that effect. The cause is before us on the complainant's appeal from the entry of such decree.

The bill of complaint, in substance, alleges that, pursuant to the provisions of chapter 2195, Pub.Laws 1935, a state board was created for the purpose of purchasing voting machines; that the board has contracted with the Shoup Voting Machine Corporation for the purchase of such machines at a price higher than the bid of the Automatic Voting Machine Corporation; that the machines of the Shoup Corporation have not been approved by the secretary of state as required by law; and that no legal contract may be made for such voting machines until the General Assembly, after the referendum provided in the act, takes affirmative action with reference to the issuance of bonds to cover the cost of such machines. No allegation of fraud or bad faith, either directly or by inference, is contained in the bill. The prayer of the bill is for the relief that we have already specified.

The complainant rested upon his sworn bill at the hearing in the superior court. The Attorney General, however, called and examined him as a witness. In this examination the complainant, a practicing attorney, testified that he had been retained as counsel by the Automatic Voting Machine Corporation, an unsuccessful bidder, and that he had received a retainer of $500 from that corporation to bring this suit regardless of whose name was used as a taxpayer. He further testified that if the litigation terminated in his favor, he expected a larger fee.

The respondents contend that the superior court was without jurisdiction to enjoin the agencies of the state at the suit of an individual taxpayer. It is well settled in this state that a taxpayer in a municipality may maintain a bill in equity against a municipal corporation to enjoin its officers from abusing its powers in expending money without authority of law.

Page 688

As early as 1872, this court, in Place v. Providence, 12 R.I. 1, at page 5, says: "The power of a court of chancery to control a municipal corporation in order to prevent any abuse of its powers or any perversion of its funds is too well established to admit of any doubt, and that the application for its exercise may be made by taxpayers, as well as by the English practice of an information by the Attorney General, is also well supported by authority." See, also, Sherman v. Carr, 8 R.I. 431; Austin v. Coggeshall, 12 R.I. 329, 34 Am.Rep. 648; Murphy v. Duffy, 46 R.I. 210, 124 A. 103.

The precise question as to whether a taxpayer, acting in his individual capacity, may maintain a suit to enjoin a state agency has not been decided by this court. In other jurisdictions there appears to be a decided conflict on this point. One line of authorities, and probably the greater in number, permit such proceedings. The courts that follow this rule argue, in substance, that upon principle and reason there is no distinction between the right of a taxpayer to maintain a suit to enjoin misapplication of the public funds by a municipality, and the right of such taxpayer to maintain a suit to enjoin an invalid expenditure of public funds by a state agency. Green v. Jones, 164 Ark. 118, 261 S.W. 43; Leckenby v. Post Printing & Publishing Co., 65 Colo. 443, 176 P. 490; Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann.Cas.1916B, 1120; Christmas v. Warfield, 105 Md. 530, 66 A. 491; Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673; Page v. King, 285 Pa. 153, 131 A. 707.

The jurisdictions that take an opposite view distinguish between the relationship of a taxpayer to a municipal corporation and his relationship to the sovereign state. These authorities, upon considerations of public policy, do not permit interference with state agencies by a taxpayer upon a mere showing that he will be affected, along with and in the same way as all other taxpayers, by an alleged improper expenditure of state funds. B. F. Cummins Co. v. Burleson, 40 App.D.C. 500; Asplund v. Hannett, 31 N.M. 641, 249 P. 1074, 58 A.L.R. 573; Jones v. Reed, 3 Wash. 57, 27 P. 1067; Navarro v. Post, 5 Porto Rico (Fed.) 61. There are also a number of jurisdictions where suits by taxpayers against state agencies were instituted, but in which the status of the taxpayer as a proper complainant was not specifically questioned and passed upon. Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L.R.A. 312; Martin v. Lacy, 39 Kan. 703, 18 P. 951; State v. State Board of Examiners, 74 Mont. 1, 238 P. 316; Thrailkill v. Smith, 106 Ohio St. 1, 138 N.E. 532; Evanhoff v. State Industrial Accident Comm., 78 Or. 503, 154 P. 106.

We will not express our opinion on this point, for reasons which will presently appear, and pass on to the respondents' contention that, under any view of the law governing the bringing of such a suit by a taxpayer, the complainant in this case is not the real party in interest. Their claim is that the present suit was not instituted in good faith by the complainant to prevent the misapplication of public funds. They point to his uncontradicted testimony and say that, although it was his privilege to accept a retainer as an attorney at law from a foreign corporation that was not a taxpayer, he had no right or legal justification to conceal the fact that such corporation was the real party in interest, by bringing a taxpayer's bill in his own name as complainant and thus raise issues which the corporation could not raise in its own right. They, therefore, urge that he is without standing in court, especially in a court of equity.

It is fundamental that equitable remedies in particular are available only to those who have a real interest in the matter litigated and that, upon proper presentation and proof, the court will go behind an ostensible party and decide the issue as if the suit were instituted by the real party in interest. New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656; United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; In re Burdick, 162 Ill. 48, 52, 44 N.E. 413; People v. General Electric Ry. Co., 172 Ill. 129, 50 N.E. 158; Bell & Howell Co. v. Bliss (C.C.A.) 262 F. 131; Nicrosi v. Calera Land Co., 115 Ala. 429, 22 So. 147. See, also, Pomeroy, Eq.Juris. (2d Ed.) 541. This rule evidently applies with equal force in a suit instituted by a taxpayer against a municipality or other governmental agency to assert a right common to all the taxpayers. In such a case he is required to act in good faith and not to lend his name and standing as a taxpayer in furthering the interests of a stranger to the record, who chooses to remain in the background for expediency or legal incapacity. Johnson v. City of New Orleans,

Page 689

105 La. 149, 29 So. 355; Vadakin v. Crilly, 7 Ohio Cir.Ct.R. (N.S.) 341, 344; Stubbs v. City of Aurora, 160 Ill.App. 351.

The complainant cites a number of cases in support of his contention that a taxpayer is entitled to maintain such a suit irrespective of the motive that influenced him in bringing the suit. A careful reading of the opinions in those cases does not support his claim. In some of the cases the motive was investigated and found to be proper--Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N.W. 603, 106 Am.St.Rep. 931--in others, motive was held immaterial because the suit was brought under a statute, or the question was improperly raised by the pleadings, or it was injected as a matter not of record, or the impropriety of the real motive was insufficiently proven by the evidence--Mazet v. City of Pittsburgh, 137 Pa. 548, 20 A. 693; Consumers' Co. v. City of Chicago, 313 Ill. 408, 145 N.E. 114; Gage v. City of New York, 110 A.D. 403, 97 N.Y.S. 157--and in others, the real party in interest brought the suit in his own name as a taxpayer without subterfuge or concealment. Times Publishing Co. v. City of Everett, 9 Wash. 518, 37 P. 695, 43...

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