Carr v. Kettelle

• Decision Date: 04 March 1910
• Citation: 30 R.I. 339,75 A. 488
• Parties: CARR, Town Treasurer v. KETTELLE, Collector of Taxes, et al.
• Court: Rhode Island Supreme Court

75 A. 488

30 R.I. 339

CARR, Town Treasurer

v. KETTELLE, Collector of Taxes, et al.

Supreme Court of Rhode Island.

March 4, 1910.

Exceptions from Superior Court, Kent County; Darius Baker, Judge.

Action by Willis A. Carr, Town Treasurer, against Samuel Kettelle, Collector of Taxes, and others. Decision for plaintiff, and defendants except. Remitted for new trial.

Samuel W. K. Allen, for plaintiff.

Quinn & Kernan, for defendants.

BLODGETT, J. The plaintiff, as town treasurer of West Greenwich, has brought this action of debt upon the bond, given in the year 1904, by the defendant and his sureties as collector of taxes of said town. Upon trial to the superior court without a jury decision was rendered for the defendants, and the plaintiff has brought the case here upon his bill of exceptions, of which we find it necessary to consider but two.

The defendants by their fifth plea averred the invalidity of the tax assessed on June 30, 1904, because the financial town meeting "at which said tax was levied and ordered to be assessed was not a legal meeting, because there had been no legal canvass of the voting list of said town prior to said alleged meeting as required by law." At the trial it affirmatively appeared on the record that the special financial town meeting held on said June 30, 1904, was called by the town council at its session held on June 22, 1904, and less than 10 days prior thereto. The trial justice held with the defendants on this plea, in his decision stating: "There was no proof of any legal canvass of the voting list, and I therefore find that said levy and assessment are invalid, because it does not appear that there had been a legal canvass of the voting list as required to give validity to such town meeting." The plaintiff contends upon his brief as follows: "The law does not require that there shall be any canvass of the voting list before the holding of a financial town meeting. That it was competent for the Legislature to make such provision, and that it may be most desirable, is not the question before the court. Unless such requirement is directed by specific act of the Legislature, it cannot be insisted upon"—and relies upon section 10, c. 8, Gen. Laws 1896 (now section 10, c. 8, Gen. Laws 1909) and section 7, c. 808, Pub. Laws, passed January 23, 1901 (now section 5, c. 8, Gen. Laws 1909), which are respectively as follows:

"The board of canvassers shall also hold a last meeting not more than seven nor less than three days preceding the day of voting at any election, when they shall complete the lists of all persons qualified to vote, and notice of the time and place of such meeting shall be given, for at least ten days previous thereto, by posting up notices thereof in three or more public places in every town, and one in each ward and voting district in each city, and one in each voting district in any town divided into districts for the purpose of voting, and one in the town or city clerk's office, and by publication in one or more newspapers published in such town or city, if any there be."

"The board of canvassers shall hold their last meeting not more than seven nor less than three days preceding the Tuesday next after the first Monday in November in each year to further correct and add to the voting lists for such towns or wards, and shall also meet not more than seven nor less than three days prior to any other general or special election to further correct and add to such voting lists. City and town clerks, immediately upon issuing notices for any called town ward, or district meeting, or for any special election shall notify the board of canvassers thereof."

It will be observed that the language of these sections refers to general and special "elections" only, and it is obvious that a town meeting held for the Imposition of a tax or for the expenditure of money is not an election. Section 1 of article 2 of the Constitution, in defining the qualifications of a real estate voter, makes this distinction apparent in providing that such a. voter shall "have a right to vote in the election of all civil officers and on all questions in all legal town or ward meetings so long as he continues so qualified"; and the same distinction is observed in section 1 of article 7 of amendments. Moreover, the right to vote in the election of all civil officers elected by the people is extended to registry voters as well as property voters by said article 7 of amendments, and the impropriety of applying the term to a meeting wherein only the taxpaying electors can participate is obvious. See In re Canvassers' Powers, 17 R. I. 809, 21 Atl. 910.

At the time of the adoption of the present Constitution in 1843 and for many years thereafter, it was apparently the universal custom to hold the general town meeting for the election of town officers and the financial town meeting on the same day, and the canvass for the former meeting was thus all that was required. That the voting lists were to be then canvassed only for elective town meetings is evident from the wording of the statute (Revision 1844, p. 488): "Said board of canvassers shall also, at least two days previous to any election of Representatives to Congress, or of electors of President and Vice President of the United States, and to the election of any state, town or city officers, hold a session for the purpose of further correcting the town and ward lists of voters." But with the great growth of the population of the state, and the corresponding increase in the amount of the appropriations necessary for the expenses of the town, as well as the greater number of appropriations required therefor and the increasing difficulty of having a larger electorate balloting for officers, while the taxpayers were debating the town appropriations at the same time and place, the inevitable difficulty of determining who were entitled to vote in a given case on a viva voce vote or on a show of hands, and for other weighty and proper reasons, the former practice was abandoned, and at the...