Trainor v. Lee

• Decision Date: 29 June 1912
• Citation: 34 R.I. 345,83 A. 847
• Parties: TRAINOR v. LEE, CITY TREASURER.
• Court: Rhode Island Supreme Court

83 A. 847

34 R.I. 345

TRAINOR

v. LEE, CITY TREASURER.

Supreme Court of Rhode Island.

June 29, 1912.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Action by Patrick Trainor against William M. Lee, City Treasurer. Judgment for plaintiff, and defendant brings exceptions. Overruled.

Benjamin W. Grim, of Providence, for plaintiff.

John P. Brennan, City Sol., of Cranston, for defendant.

PARKHURST, J. This is an action on the ease to recover the sum of $443.21 for services rendered by the plaintiff as chief of police, town sergeant, and dog officer of the town of Cranston and the city of Cranston. The suit was commenced in the district court of the Eighth judicial district, and on the entry day of the writ a jury trial was claimed by the plaintiff, and the case certified to the superior court. The case was tried before a justice of the superior court and a jury on the 2d day of November, A. D. 1911, and a verdict returned for the plaintiff for the full amount of his claim, with interest and costs, amounting to $484.74, by direction of the court.

The defendant now comes before this court upon bill of exceptions; the exceptions being to the direction of the verdict for the plaintiff, and also to the exclusion by the court of testimony offered by the defendant to show that at the time when the services were rendered by the plaintiff the town of Cranston was indebted in excess of the statutory limit of 4 per cent. of the taxable property of the town, and to the further exclusion of testimony of counsel for the defendant, who offered himself as a witness for the defendant, that no appropriation of money was made from which the claims of the plaintiff could properly be paid. The proof showed that the plaintiff was the duly elected and qualified chief of police, town sergeant, and dog officer of the town and city of Cranston, town sergeant from April 1 to April 19, 1909, chief of police from April 18 to June 3, 1910, and dog officer in April, 1910, and that the services for which compensation was claimed were actually rendered by him between those dates, and that the claims had been duly presented to the town council of the town of Cranston in part, and to the city council of the city of Cranston as to the whole, and that no part thereof had been paid, and there was no dispute as to amounts claimed, as being correct.

The defendant pleaded the general issue, and two special pleas: (1) Setting up that the town of Cranston was indebted in excess of its debt limit, fixed by statute (chapter 1428, Acts 1895) at 4 per cent. of the taxable property of the town; (2) setting up that, at the time when the claims of the plaintiff for services are alleged to have been incurred and to have accrued, there was no authority to incur the same by virtue of any vote, resolution, etc., or by virtue of any authority on the part of any officer or agent of the town. The principal contention of the defendant was made under its first special plea, that inasmuch as the town of Cranston was, at the time when the services were rendered, indebted in excess of its 4 per cent. debt limit, it could not lawfully incur such obligations to the plaintiff as he claims, because that would be to incur a debt in excess of the statutory limit.

To that plea the plaintiff duly filed its demurrer, on the following grounds: "First, that it does not appear in and by said plea that there was no money in the treasury of the town of Cranston, at the time said indebtedness was incurred, which had been specially set apart for the payment of claims like the one in suit; second, that it does not appear in and by said plea that the said town at that time had no money in its treasury to meet this indebtedness; third, that it does not appear in and by said plea that the said town at that time would be unable to meet this indebtedness from its current revenues."

This demurrer was sustained by the presiding justice of the superior court, and to this ruling the defendant took no exception. Accordingly when the defendant, at the trial of the case before the jury, offered evidence tending to show that the town had exceeded its debt limit, the trial judge ruled in accordance with the said decision of the presiding justice on the demurrer, and excluded the evidence offered as immaterial. We think that, if the defendant desired to bring this question before this court, it would have been the proper course of procedure to have reserved exception to the ruling on the demurrer, and to have brought such exception before us in its regular course. But the defendant, not following such procedure, saw fit to attempt to offer such evidence under the general issue, and now insists that such evidence, showing that the plaintiff's claims are wholly void, was properly admissible under the general issue, in accordance with the liberal rules governing pleading in this state. Without deciding this question, however, on technical grounds, we think that, in view of the importance to the towns of this state of the question as to the admissibility and effect of such testimony, and in view of the novelty of the question in this state, we are justified in treating the question as fairly before us on the specific exception, and we proceed, therefore, to its consideration.

It is to be observed at the outset that, as to the services of the plaintiff, here in suit, as chief of police and town sergeant, such services fall naturally and inevitably within the class of services properly and necessarily incidental to the ordinary daily affairs of a municipal corporation, and that the compensation therefor naturally and inevitably falls within the current expenses of such a corporation. As to the services rendered as dog officer, it is to be observed that chapter 135, Gen. Laws 1909, "Of Dogs," by section 12 provides as follows: "The town sergeant of each town, or such special constables as the town council of such town may appoint, annually in the mouth of April shall ascertain and make a list of the owners or keepers of dogs in such town and return such list to the town clerk on or before the last day of May, and shall receive from the town treasury the sum of twenty cents for each dog so listed;" while by section 13 provision is made for killing dogs not licensed and a fee of $2 for each dog killed and buried is to be paid out of the town treasury. So that by the express provisions quoted it is made one of the annual duties of the town to make such a list of owners of dogs, and the fees therefor and for killing and burying are expressly fixed by law, and payment therefor is expressly provided to be made out of the town treasury. Such service is, therefore, to be deemed to be properly and necessarily incidental to the management of the affairs of the town as a proper police regulation, and the compensation therefor fixed by law must be deemed to be one of the current expenses of the town.

The question here involved has never been squarely brought before this court; but it was, among other questions, incidentally considered in the case of McAleer v. Angell, 19 R. I. 688, 36 Atl. 588, where, upon a suit in assumpsit to recover for stone furnished the town of North Providence by the plaintiff, the defendant filed a special plea in bar, setting up that "at the time of contracting said debt the said town had incurred debts to the limit allowed by law, and also that there was no money in the hands of the defendant town treasurer at that time, nor has there been any money in his hand at any time since then, with which said debt could have been paid. To this plea the plaintiff demurs on the grounds: (1) That it is bad for duplicity; (2) that the fact that the town had reached its debt limit is not a good defense, because the duty of the town to keep its highways in repair is a statutory one, and is not suspended by reason of the fact that the town had reached its debt limit; (3) because, as the town council of said town, on October 22, 1894, allowed the plaintiff's claim and ordered it paid, the town is estopped from denying the validity thereof. We do not think the plea is bad for duplicity. A double plea is one which consists of several distinct and independent matters alleged to the same point and requiring different answers. Gould's Pleading, p. 420. But this rule is not violated by introducing several matters into a plea, if they be constituent parts of the same entire defense. 1 Chit. p. 512; Handy v. Waldron, 18 R. I. 567 [29 Atl. 143, 49 Am. St. Rep. 794]. Without the allegation objected to in the plea before us, it would not state a full defense to the action, and hence would be demurrable because, notwithstanding the fact that the town had reached its debt limit when this bill was contracted, yet there might have been money in the treasury at that time which had been specially set apart for the payment of claims like the one in suit; and if the town had the means in its treasury to meet this indebtedness, or would have it in anticipation of its current revenue, the contracting of the liability, even though the town then was up to its debt limit, would not be a violation of the statute. Dill. Mun. Cor. (4th Ed.) § 135; Dively v. Cedar Falls, 27 Iowa, 227, 232; Barnard v. Knox County, 105 Mo. 382, 391 [16 S. W. 917, 13 L. R. A. 244]."

It is to be noted that the plea which was held good in McAleer v. Angell, supra, goes far beyond the plea in the case at bar, in that it sets up not only the excess of the debt limit, but also that there was not, and never had been, money in the hands of the defendant to pay the claim. The principle above incidentally alluded to and approved in the case cited has frequently been followed in other states. In the case of Grant v. City of Davenport, 36 Iowa, 396, an ordinance permitted the formation of a water company by certain persons, and granted to the company a privilege to supply water to the city for a term of years,...