Barber v. Adams
| Decision Date | 06 January 1915 |
| Docket Number | No. 4770.,4770. |
| Citation | 37 R.I. 323,92 A. 757 |
| Parties | BARBER v. ADAMS, Town Treasurer. |
| Court | Rhode Island Supreme Court |
Case Certified from Superior Court, Kent County.
Action by Herbert W. Barber against Dwight R. Adams, Town Treasurer. Case certified to Supreme Court on agreed statement of facts. Judgment ordered for plaintiff.
Mumford, Huddy & Emerson, of Providence (Charles C. Mumford, of Providence, of counsel), for plaintiff.
Quinn & Kernan, of Providence, for Philip Duffy, Town Treasurer of West Warwick. Harold R. Curtis, of Providence, for defendant Howard V. Allen.
This case comes before this court upon an agreed statement of facts filed in the superior court within and for the county of Kent, and certified therefrom to this court for its determination, under the statute, Gen. Laws of R. I. 1909, c. 298, § 4. The agreed statement of facts is as follows:
The plaintiff, Herbert W. Barber, was upon the 14th day of November, A. D. 1910, duly elected collector of taxes of said town of Warwick, by the town council of said town.
The record of said town council is as follows:
The town council at said meeting held upon the 14th day of November, A. D. 1910, did not fix or purport to fix the salary or compensation of said tax collector, nor offer any sum to said plaintiff for services to be performed by him as said tax collector, but adjourned without fixing or attempting to fix said compensation or making any offer to said plaintiff.
Thereafter upon the same day, to wit, the 14th day of November, A. D. 1910, the said Herbert W. Barber, plaintiff, took the following engagement before James T. Lockwood, notary public:
That upon the following day, to wit, the 15th day of November, A. D. 1910, by the electors of said town of Warwick qualified to vote upon any proposition for the expenditure of money or the imposition of a tax, assembled in financial town meeting, it was voted as follows:
"The following sums of money are hereby appropriated as the salaries of the town officers named below for the year ensuing, and the town treasurer is hereby forbidden to pay any of fleer named in this resolution any sum of money in excess of the amounts hereby appropriated: * * * Tax collector, $600. * * *"
Meetings of the said town council were held upon the 22d day of November, the 25th day of November, the 26th day of November, the 29th day of November, the 27th day of December, A. D. 1910, and the 24th day of January, A. D. 1911, and at none of said meetings were any votes passed fixing or purporting to fix the salary or compensation of the collector of taxes or offering to the plaintiff any sum for compensation for services to be performed by him as collector of taxes as aforesaid.
The plaintiff presented to the town council at its meeting held upon the 24th day of January, A. D. 1911, the following communication:
And said communication was read to the council, and it was thereupon voted that said communication be received and recorded.
At the same meeting of the said town council, the said plaintiff presented his bond which was dated November 30, 1910, to said town council for its approval, and it was "voted, that the same be and is referred to the solicitor." And at the same meeting the bill of the surety company which had executed said bond as surety for premium on said bond was presented and ordered paid.
At a meeting of the town council held upon the 4th day of February, A. D. 1911, it was "voted, that the bond presented by Herbert W. Barber for tax collector on January 24, 1910, for approval and acceptance by the town, be and the same is hereby not approved or accepted." At the same meeting it was "voted, that the sum of six hundred dollars be and the same is hereby appropriated as the compensation for the tax collector for the ensuing year." Except for this vote, no action was taken by said town council fixing or attempting to fix the compensation for tax collector.
After the action of the town council upon the 4th day of February, A. D. 1911, in voting that the bond of the plaintiff as tax collector be not accepted nor allowed, the plaintiff brought his petition for writ of mandamus against the members of the town council, to compel them to approve and accept his bond; said petition was heard before the superior court, his honor Mr. Presiding Justice Tanner presiding, and said petition was granted, and writ of mandamus was ordered to issue.
At a meeting of said town council held upon the 28th day of February, A. D. 1911, it was voted that the bond of the tax collector be approved and accepted. At the same meeting, the plaintiff presented to said town council, when in session, the following communication:
And the same was read to the council, and it was voted that the same be laid upon the table.
At the financial town meeting aforesaid held upon the 15th day of November, A. D. 1910, it was voted that a tax be levied upon the real property and personal property belonging to inhabitants of said town of Warwick and other ratable property therein, and that the board of assessors of taxes should assess and apportion said tax on the 31st day of December, A. D. 1910, pursuant to which said vote the assessors of taxes of said town of Warwick did upon the date prescribed, namely, the 31st day of December, A. D. 1910, assess and apportion on the inhabitants of said town and the ratable property therein a tax at the rate and in the manner prescribed by said vote of said financial town meeting and thereafterwards, to wit, upon the 28th day of February, A. D. 1911, the plaintiff being then and there town treasurer of said town as well as collector of taxes thereof, received from the town clerk of said town of Warwick the warrant of said town clerk commanding said plaintiff to proceed and collect the several sums of money expressed in the copy of the assessment of taxes to which said warrant was affixed, and the plaintiff forthwith did proceed and did execute the duties imposed upon him as collector of taxes aforesaid, and did collect the several sums of money in said assessment expressed, of the persons and estates liable therefor, to the amount of $175,642.78, and did pay over the sums so collected to the said Herbert W. Barber, who was then and there town treasurer, and to Dwight R. Adams, who thereafterwards became town treasurer; the said plaintiff having resigned his office as town treasurer, and the said Dwight R Adams having been elected to succeed him and having qualified as such town treasurer, and paid over to the duly authorized town treasurer of said town all the sums so collected by him.
That more than 40 days prior to the commencement of this action, to wit, upon the 20th day of January, A. D. 1913, the said plaintiff, claiming that he had not agreed with said town of Warwick for a less compensation than 5 per centum of the sums collected by him, presented to said town council of said town of Warwick his claim for compensation, to wit, for 5 per centum of the taxes theretofore collected, amounting to the sum of $175,642.78, the amount claimed by said plaintiff being $8,782.14, and then and there presented to said town council the particular account of said claim, debt, and demand and how the same was contracted and incurred, and no just and due satisfaction has been made to him by the town treasurer of said town or by any other person, and no part of the sum claimed by him has been paid.
Said claim for compensation was never presented to the town council of the town of West Warwick, or to any other council or body than the said town council of Warwick.
That in November, A. D....
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Capone v. Nunes
...406, which is cited and relied on by respondents in the instant case. And in Quinn v. Barber, 31 R.I. 538, 77 A. 1003, and Barber v. Adams, 37 R.I. 323, 92 A. 757, that view was We are of the opinion, therefore, that the special town meeting was wholly lacking in power and authority to crea......