Barber v. Barber

• Decision Date: 31 March 1911
• Citation: 79 A. 482,32 R.I. 266
• Parties: BARBER v. BARBER, TOWN TREASURER, et al.
• Court: Rhode Island Supreme Court

79 A. 482

32 R.I. 266

BARBER

v. BARBER, TOWN TREASURER, et al.

Supreme Court of Rhode Island.

March 31, 1911.

Case certified from Superior Court, Kent County; George T. Brown, Judge.

Action by Herbert W. Barber against Herbert W. Barber, Town Treasurer, and another. Case certified from the superior court to the Supreme Court. Remitted, with direction to dismiss action.

Mumford, Huddy & Emerson (Charles C. Mumford, of counsel), for plaintiff.

Lester T. Murphy, for defendants.

BLODGETT, J. By the writ and declaration in this case the plaintiff seeks to recover "in an action of the case in the nature of assumpsit" the sum of $8,250.44, which he avers is due him from the town of Warwick as compensation for his services as collector of taxes therein for the year 1910. The parties defendant named in the writ are "Herbert W. Barber, as town treasurer of the town of Warwick, a municipal corporation, duly existing under the laws of said state, and located in the county of Kent therein, and said town of Warwick." The officer's return on the writ is as follows: "Kent—sc. At Warwick, in the county of Kent, on this 19th day of December, A. D. 1910, I have made service of the within writ, as within commanded, by leaving a true and attested copy of the same with Herbert W. Barber, town treasurer of the town of Warwick, and James T. Lockwood, town clerk of said Warwick, the said defendants, in their hands and possession. Michael B. Lynch, Sheriff."

Inasmuch as the statute does not authorize service upon the town clerk for the purpose of enforcing a claim against the town, but provides for service of process on the town treasurer only, it is evident that the town is not concluded by service upon the town clerk, and that any judgment based on such service would be a nullity. Valcourt v. City of Providence, 18 R. I. 160, 26 Atl. 45. The provisions of Gen. Laws 1909, c. 46, § 12, are as follows: "Every person who shall have any money due him from any town or city, or any claim or demand agai town or city, for any matter, cause or thing whatsoever, shall take the following method to obtain the same, to wit: Such person shall present to the town council of the town, or to the city council of the city, a particular account of his claim, debt, damages or demand, and how incurred or contracted; which being done, in case just and due satisfaction is not made him by the town or city treasurer of such town or city within forty days after the presentment of such claim, debt, damages or demand aforesaid, such person may commence his action against such treasurer for the recovery of the same." The case must therefore be considered as if the only service made were upon the town treasurer, and the counsel for Barber, town treasurer, appears so to have considered it by his pleas. Inasmuch as certain questions raised are of public interest, it is not inexpedient to consider the pleadings in the case at some length.

The declaration is in three counts, of which the first is as follows:

"For that at said Warwick, on, to wit, the 8th day of November, A. D. 1909, the plaintiff was by the town council of said Warwick elected collector of taxes of said town of Warwick, and the plaintiff accepted said office, and took the engagement thereof prescribed by statute, and gave the bond prescribed by statute, which bond was, at said Warwick, to wit, on the 24th day of January, A. D. 1910, accepted and approved by the town council of said Warwick, and thereafter, to wit, on the 11th day of February, A. D. 1910, 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 a warrant, under the hand 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, said taxes having theretofore been duly assessed by the assessors of taxes of said town of Warwick; and the plaintiff avers that he forthwith did proceed and execute the duties imposed on him as collector of taxes as aforesaid, and did collect the several sums of money in said assessment expressed of the persons and estates liable therefor, to the amount of, to wit, one hundred and sixty-five thousand and eight dollars and eighty-eight cents ($165,008.88), and did pay over the sum so collected to Herbert W. Barber, town treasurer of said town of Warwick; and the plaintiff avers that he has not agreed with said town of Warwick for a less sum than 5 per cent. of the sum so collected by him, whereby and in consideration whereof said town of Warwick agreed and upon itself assumed to pay to the plaintiff 5 per cent. of the sum so collected by him, to wit, the sum of eight thousand two hundred and fifty dollars and forty-four cents ($8,250.44), when thereunto duly requested. And the plaintiff avers that more than 40 days before the commencement of this action, to wit, on the 22d day of August, A. D. 1910, he presented to said town council of said town of Warwick a particular account of his 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 of Warwick, or by said town."

To said first count the following plea is filed:

"And the said defendant in the above-entitled action comes and defends the wrong and injury, when, etc., mentioned in the first count in said declaration, and says that he or it did not undertake or promise, in manner and form as the said plaintiff has in said first count in his declaration thereof complained against said defendant, and of this he puts himself upon the country. Herbert W. Barber, Town Treas., by His Attorney, Lester T. Murphy."

The second count is as follows: "And the plaintiff further complains of the defendants as in an action of debt, by virtue of the statute in such case made and provided: For that at said Warwick, on, to wit, the 8th day of November, A. D. 1909, the plaintiff was by the town council of said Warwick elected collector of taxes of said town of Warwick, and the plaintiff accepted said office, and took the engagement thereof prescribed by statute, and gave the bond prescribed by statute, which bond was, at said Warwick, to wit, on the 24th day of January, A. D. 1910, accepted and approved by the town council of said Warwick, and thereafter, to wit, on the 11th day of February, A. D. 1910, 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 a warrant under the hand 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, said taxes having theretofore been duly assessed by the assessors of taxes of said town of Warwick; and the plaintiff avers that he forthwith did proceed and execute the duties imposed on him as collector of taxes as aforesaid, and did collect the several sums of money in said assessment expressed of the persons and estate liable therefor, to the amount of, to wit, one hundred and sixty-five thousand and eight dollars and eighty-eight cents ($165,008.88), and did pay over the sum so collected to Herbert W. Barber, town treasurer of said town of Warwick; and the plaintiff avers that he has not agreed with said town of Warwick for a less sum than 5 per cent. of the sum so collected by him, whereby and by force of the statute in such case made and provided, to wit. section 4 of chapter 62 of the General Laws of 1909, an action hath accrued to the plaintiff to demand and recover of the said town of Warwick 5 per cent. of the sum so collected by him, to wit, the sum of eight thousand two hundred and fifty dollars and forty-four cents ($8,250.44); and the plaintiff avers that more than 40 days before the commencement of this action, to wit. on the 22d day of August, A. D. 1910, he presented to said town council of said town of Warwick a particular account of his 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 of Warwick or by said town."

And following is the plea thereto: "And as to the second count in said declaration the said defendant in the above-entitled action comes and defends the wrong and injury, when, etc., mentioned in said second count in said declaration, and says that the defendant does not owe the said sum of money demanded, or any part thereof, in manner and form as the said plaintiff hath in said second count in his declaration thereof complained against him, and of this he puts himself upon the country. Herbert W. Barber, Town Treasurer, by His Attorney, Lester T. Murphy."

The third count is thus stated:

"And the plaintiff further complains of the defendants as in an action of debt by virtue of the statute in such case made and provided: For that at said Warwick, on, to wit, the 8th day of November, A. D. 1909. the plaintiff was by the town council of said Warwick elected collector of taxes of said town of Warwick, and by said town council on said 8th day of November, A. D. 1909, it was voted that the salary of the collector of taxes be fixed at the sum of $000, and at a financial town meeting held in said Warwick on, to wit, the 10th day of November, A. D. 1909, it was voted to appropriate the sum of $000 for the salary of the collector of taxes, and thereafterwards, to wit, on the 22d day of November, A. D. 1909, the said plaintiff in writing made known to the town council of said Warwick, then and there in regular session, and to said town, that he declined to accept said sum of $000 as compensation for his services as collector of taxes, and declined to agree with said town upon said sum as such compensation, and by said town council it was then and there voted that said...