Angel v. Murray

• Decision Date: 22 July 1974
• Docket Number: No. 1912-A,1912-A
• Citation: 322 A.2d 630,113 R.I. 482
• Parties: , 85 A.L.R.3d 248 Alfred L. ANGEL et al. v. John E. MURRAY, Jr., Director of Finance of the City of Newport, et al. ppeal.
• Court: Rhode Island Supreme Court

Page 630

322 A.2d 630

113 R.I. 482, 85 A.L.R.3d 248

Alfred L. ANGEL et al. v. John E. MURRAY, Jr., Director of Finance of the City of Newport, et al.

No. 1912-Appeal.

Supreme Court of Rhode Island.

July 22, 1974.

Vernon A. Harvery, Newport, for plaintiffs.

Moore, Virgadamo, Boyle & Lynch, Ltd., Jeremiah C. Lynch, Jr., Newport, for defendants.

OPINION

ROBERTS, Chief Justice.

This is a civil action brought by Alfred L. Angel and others against John E. Murray, Jr., Director of Finance of the City of Newport, the city of Newport, and James L. Maher, alleging that Maher had illegally been paid the sum of $20,000 by the Director of Finance and praying that the defendant Maher be ordered to repay the city such sum. The case was heard by a justice of the Superior Court, sitting without a jury, who entered a judgment ordering Maher to repay the sum of $20,000 to the city of Newport. Maher is now before this court prosecuting an appeal.

The record discloses that Maher has provided the city of Newport with a refuse-collection service under a series of five-year contracts beginning in 1946. On March 12, 1964, Maher and the city entered into another such contract for a period of five years commencing on July 1, 1964, and terminating on June 30, 1969. The contract provided, among other things, that Maher would receive $137,000 per year in return for collecting and removing all combustible and noncombustible waste materials generated within the city.

In june of 1967 Maher requested an additional $10,000 per year from the city council because there had been a substantial increase in the cost of collection due to an unexpected and unanticipated increase of 400 new dwelling units. Maher's testimony, which is uncontradicted, indicates the 1964 contract had been predicated on the fact that since 1946 there had been an average increase of 20 to 25 new dwelling units per year. After a public meeting of the city council where Maher explained in detail the reasons for his request and was questioned by members of the city council, the city council agreed to pay him an additional $10,000 for the year ending on June 30, 1968. Maher made a similar request again in June of 1968 for the same reasons, and the city council again agreed to pay an additional $10,000 for the year ending on June 30, 1969.

The trial justice found that each such $10,000 payment was made in violation of law. His decision, as we understand it, is premised on two independent grounds. First, he found that the additional payments were unlawful because they had not been recommended in writing to the city council by the city manager. Second, he found that Maher was not entitled to extra compensation because the original contract already required him to collect all refuse generated within the city and, therefore, included the 400 additional units. The trial justice further found that these 400 additional units were within the contemplation of the parties when they entered into the contract. It appears that he based this portion of the decision upon the rule that Maher had a preexisting duty to collect the refuse generated by the 400 additional units, and thus there was no consideration for the two additional payments.

I.

The first ground upon which the trial justice appears to have based his decision is that the action of the city council in amending the 1964 contract so as to provide for the additional compensation violated § 9-23 of the Charter of the City of Newport. Generally, § 9-23 of the charter mandates that the purchase of or contract for supplies, materials, or equipment shall be on the basis of competitive bidding and that all contracts in which the amount involved exceeds $1,000 shall be awarded to the lowest responsible bidder after public notice, and gives the council power to reject all bids and to advertise for new bids. Said § 9-23 goes on to provide specifically: 'ALTERATIONS IN ANY CONTRACT ENTERED INTO maY be made when authorized by the council on the written recommendation of the manager.'

The record discloses that the original contract for refuse collection executed in 1964 was awarded after full compliance with the bidding provisions of § 9-23. It is, however, also clear that neither award for additional compensation was made on the basis of a written recommendation therefor by the city manager. The trial justice found specifically that the pertinent language of § 9-23 constitutes a limitation on the authority of the city council to amend an existing contract in that this section mandates that the authority to amend an existing contract can be exercised only when such action is recommended in writing by the city manager.

We are unable to agree. A literal reading of the pertinent provision of § 9-23 does appear to give the city manager power to prevent the city council from amending an existing contract, however comprehensive might be the city council's knowledge of the compelling need for such an amendment. However, in Rhode Island Consumers' Council v. Public Utilities Commission, 107 R.I. 284, 267 A.2d 404 (1970), we reiterated our well-settled rule of statutory construction that this court will not undertake to read an enactment literally if to do so would result in attributing to the Legislature an intention that is contradictory of or inconsistent with the evident purposes of the act. We have consistently subscribed to the principle that a legislative enactment should be given what appears to be the meaning most consistent with its policy or obvious purposes. Mason v. Bowerman Bros., 95 R.I. 425, 187 A.2d 772 (1963); Zannelli v. DiSandro, 84 R.I. 76, 121 A.2d 652 (1956). These rules of statutory construction, in our opinion, apply also when this court is called upon to construe the provisions of a municipal charter. After closely scrutinizing the provisions of the charter in the light of the above-stated rule, we conclude that, in adopting the pertinent provision of § 9-23 of the charter, the people of Newport did not intend therein to limit in any way the authority of the city council to amend an existing contract.

In the first place, the charter makes clear the supremacy of the city council in the exercise of all of the powers of the city. The provision of § 1-2 of the charter grants the city comprehensive powers, both express and implied. Section 1-1 thereof provides that '* * * all powers of the city shall be vested in an elective council, hereinafter referred to as 'the council,' which shall enact local legislation, adopt budgets, determine policies, and appoint the city manager, who shall execute the laws and administer the government of the city.' The power to appoint or engage a city manager is provided for in § 5-1 of the charter, which also provides that '(t)he relationship between the city and the city manager shall be contractual and not that between a municipality and a civil officer.' The power to remove the city manager from office is vested in the city council by the provisions of § 5-2, and in Nugent ex rel. Beck v. Leys, 88 R.I. 446, 454-455, 149 A.2d 716, 721 (1959), we held that under the Newport charter '* * * the people of Newport intended that the city manager should be an employee, as distinguished from a civil officer and could be removed at the pleasure of the council.' In Nugent this court held: 'Nowhere in the charter is there any language which persuades us that the status of the relator is anything but that of a mere employee subject to engagement and removal by the council in accordance with the procedure set forth in secs. 5-1 and 2.' Id. at 455, 149 A.2d 721. The concept of intellectual consistency inhibits our subscribing to the view that the people of Newport intended to confer on the city manager a power to thwart the city council in the matter of amending existing contracts and at the same time in the same charter deny him even minimal tenure in his employment.

We are persuaded, then, that in adopting the charter, the people intended to make the city manager an administrative arm of the city council and to charge him with the performance of such duties as could more conveniently be performed by him than by the city council. It is obvious that the charter contemplates that the city manager, pursuant to the provisions of § 5-4, will be kept fully informed by the various municipal departments of the status of their operational affairs and of the financial condition of the city. In such circumstances he ordinarily would be aware of conditions that would warrant his bringing to the attention of the city council the need for the alteration of an existing contract in the city's interest. Thus, in adopting § 9-23 the people intended to require the city manager to make recommendations to the city council for action but not to preclude the city council from acting on its own where the circumstances would warrant such action. See Angel v. City of Newport, 109 R.I. 558, 288 A.2d 498 (1972). We, therefore, conclude that § 9-23 does not operate to limit the authority of the city council to amend an existing contract.

II.

Having found that the city council had the power to modify the 1964 contract without the written recommendation of the city manager, we are still confronted with the question of whether the additional payments were illegal because they were not supported by consideration.

A

As previously stated, the city council made two $10,000 payments. The first was made in June of 1967 for the year beginning on July 1, 1967, and ending on June 30, 1968. Thus, by the time this action was commenced in October of 1968, the modification was completely executed. That is, the money had been paid by the city council, and Maher had collected all of the refuse. Since consideration is only a test of the enforceability of executory promises, the presence or absence of consideration for the first payment is unimportant because the city council's agreement to make the first payment was fully executed...