H. P. Cornell Co. v. Barber

• Decision Date: 07 July 1910
• Citation: 76 A. 801,31 R.I. 358
• Parties: H. P. CORNELL CO. v. BARBER, Treasurer.
• Court: Rhode Island Supreme Court

76 A. 801

31 R.I. 358

H. P. CORNELL CO.

v. BARBER, Treasurer.

Supreme Court of Rhode Island.

July 7, 1910.

Petition for writ of mandamus by the H. P. Cornell Company to compel Herbert W. Barber, Town Treasurer of the Town of Warwick, to pay a claim against the town. Writ granted.

C M. Van Slyck and Frederick A. Jones, for petitioner.

Harry C. Curtis and P. Henry Quinn, for respondent.

JOHNSON, J. This is a petition for a writ of mandamus to compel the respondent town treasurer of the town of Warwick to pay its claim against said town, which has been approved by the town auditor and allowed and ordered paid by the town council. The answer of the respondent is as follows:

"(1) The respondent, Herbert W. Barber, town treasurer, admits that the H. P. Cornell Company, a corporation duly organized under the laws of the state of Rhode Island, and located in the city and county of Providence in said state, has a claim against the town of Warwick, a municipal corporation duly created in said state, for goods sold and delivered according to the account annexed to the petition marked 'Exhibit A'; that said goods were delivered to and used in the town asylum of said town of Warwick; that its bill therefor has been approved by Joseph H. Potter, town auditor, and allowed by the town council of said town of Warwick and ordered paid; that the respondent, Herbert W. Barber, of said Warwick, was on the 2d day of November A. D. 1909, elected town treasurer of the said town of Warwick, and has qualified according to law, and has been town treasurer of said town since the 3d day of November, 1909; that there are funds in the hands of the respondent, Herbert W. Barber, town treasurer of the town of Warwick, which are properly applicable and are sufficient for the payment of said claim, and that the respondent, Herbert W. Barber, town treasurer, refused to pay the petitioner's bill, but respondent, Herbert W. Barber, town treasurer, denies the conclusions of law attempted to be drawn therefrom as to his duty to pay said bill.

"(2) This respondent further answering says that on the third Tuesday of November, November 16, 1909, the annual town meeting of said town of Warwick was held within and for said town by the electors qualified to vote at such meeting in said town, and that at said meeting held as aforesaid the following votes, resolutions or ordinances were adopted: 'Voted: That the town treasurer is hereby directed not to expend any money in payment of any bill or claim against the town unless the bill or claim shall first have been approved by an auditing committee to consist of the person named in this resolution who is hereby elected to serve as such auditing committee for one year from this date at a salary of $200, or, unless said claim or bill shall have been reduced to a judgment against the town. And the holder of any such bill or claim against the town shall be left to collect the same by due process of law whenever said auditing committee shall not have approved the same. In case of any vacancy in said committee by death, resignation or otherwise, the committee on town debt shall elect a person to fill such vacancy, and said committee on town debt are hereby authorized by this meeting to fill such vacancy. It is further voted: That all expenditures to be made from appropriations by this meeting voted shall be subject to the above conditions. The particular and especial duty of this auditing committee will be to guard the appropriations made by this meeting by preventing the expenditure of any of said appropriations for any purpose other than those specified by this meeting. He shall see to it that no appropriation is exceeded; that no part of any appropriation is diverted from the particular department for which the appropriation is made; and that orders drawn upon the town treasurer are charged to the proper appropriations. And he shall in every other way possible guard and protect the financial interests of the town. Said auditing committee is hereby authorized and directed to receive and to have possession of all such bills and claims after the same have been passed upon by the town council or school committee, as the case may be, and the town auditor, and he shall return all such bills and claims to the town treasurer's office plainly marked with his approval or disapproval thereof, within five days of the receipt by him of such bills and claims. And it is further voted that Charles H. Alien be and he is hereby elected as such auditing committee.'

"(3) This respondent further answering says that he refuses to pay said bill because the same has not been approved by the auditing committee Charles H. Allen elected at said financial town meeting."

By stipulation it also appears as follows: "(1) That Joseph H. Potter, of the town of Warwick and county of Kent, in the state of Rhode Island, was, on the eighth day of November, A. D. 1909, elected town auditor of the town of Warwick for the ensuing year, by the town council of said town; and that said Joseph H. Potter has duly qualified and is acting as said town auditor. (2) That Charles H. Allen, of said town of Warwick, the auditing committee elected at the town meeting held on the sixteenth day of November, A. D. 1909, has demanded of Herbert W. Barber, town treasurer, possession of the bill of H. P. Cornell Company, that he might approve or disapprove said bill within five days, in accordance with the vote of the town meeting."

Although the committee appointed by the financial town meeting is called in the resolution providing for its appointment an "auditing committee," it is to be observed that the town treasurer is directed not to expend any money in payment of any bill or claim against the town without the approval of said committee. The power attempted to be given by said resolution is far greater than that of an auditor, as usually understood. The minority opinion deduces from Gen. Laws 1909, c. 46, § 11, the power of the financial town meeting to appoint such an agent as the financial town meeting appointed in the case at bar. Said section reads as follows: "Towns may and shall elect all such town officers as are, or may be, by law required, and may appoint such other officers as by law empowered, and such special agents for the transaction of any town business not by law required to be performed by any officer known to the law, as they may deem expedient." The minority opinion cites Foster v. Angell, 19 R. I. 285, 33 Atl. 406, in which case the court made the same deduction, the statute then being Pub. St. 1882, e. 34, § 11, and held the same to be a sound reason why mandamus would not lie in that case, although it held that the first reason, viz., that the claim was a disputed one, furnished a sufficient ground for the denial of the writ. The court proceeded to say: "It is true that said bills have been approved and ordered paid by the town council, and hence that the relator has taken all the necessary steps to enable him to prosecute his claim against the town in an ordinary action at law. It is also true, as contended by counsel for the relator, that the town treasurer is a ministerial officer; and it is clearly his duty to pay all bills which have been properly audited, unless he can show some error or fraud in connection therewith. Portland Stone Ware Co. v. Taylor, 17 R. I. 35, 19 Atl. 1086; Spelling on Extraordinary Relief, § 1434; Ireland v. Hunnel, 90 Iowa, 98, 57 N. W. 715; In re State House Commission and State Auditor, 19 R. I. 393, 35 Atl. 212, infra. But we do not agree with the contention of counsel for relator that the town exceeded its authority in appointing an auditor, and in requiring that all bills against the town should be approved by him before payment thereof should be made by the town treasurer. Pub. St. R. I. 1882, c. 34, § 11, provides that 'towns may and shall elect all such town officers as are or may be by law required, and may appoint such other officers as by law empowered, and such special agents, for the transaction of any town business not by law required to be performed by any officer known to the law, as they may deem expedient.' The duty of auditing bills against a town is nowhere expressly devolved upon the town council thereof, although it is clearly implied from the provisions of Pub. St. R. I. 1882, c. 34, § 12; yet we see no reason why any town may not rightfully require, in addition to their approval of said bills, a further approval by such an agent as it may designate for that purpose before the town treasurer shall pay the same. In short, the money in the town treasury having been raised by the taxpayers, they evidently have the right to surround the disbursement thereof with all reasonable safeguards. The vote hereinbefore quoted is tantamount to an ordinance of the town regulating the payment of hills; and, it being within the power of the town to pass and enact ordinances for the proper conducting of the business thereof (Farnsworth v. Pawtucket, 13 R. I. 82, 87), said vote has the force of law, and is absolutely binding upon the respondent, until, at any rate, some power superior to that of the town shall interfere."

In said case therefore, the court, finding its authority in the section quoted, held that the vote of the financial town meeting, to which power to pass ordinances was not given by the section quoted, was "tantamount" to an ordinance of the town (the town having power to pass ordinances), and was absolutely binding upon the respondent town treasurer, until, at any rate, some power superior to that of the town shall interfere. If the vote in question had been an ordinance there would have been no occasion for the use of the word "tantamount." The conclusion arrived at does not follow from the reasons given by the court. The power is given to the town, not to a class of the electors, as distinguished from the whole body of electors, to elect officers and appoint agents. The...