H. P. Cornell Co. v. Barber

76 A. 801, 31 R.I. 358, 1910 R.I. LEXIS 79

• Court: Supreme Court of Rhode Island
• Decided: July 7, 1910
• Status: Published

Opinions

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 second 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 third 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 applicablerand 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. Allen 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 appear 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, cap. 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 em powered, 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, in which case the court made the same deduction, the statute then being Pub. Stat. cap. 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 Tills which have been properly audited,, unless he can show some error or fraud in connection therewith. Portland Stone Ware Co. v. Taylor, supra; Spelling on Extraordinary Belief, § 1434; Ireland v. Hunnel, 90 Iowa, 98; In re State House Commission and State Auditor, 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. Stat. B. I. cap. 34, § 11, provides that' Town® 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. Stat. B. I. cap. 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 bills; 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.”

(1) (2) (3) In said casetherefore, 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 conclusion arrived at by the court was plainly based on the assumption that under the power given to the town by the section quoted, viz., to appoint “such special agents, for the transaction of any town business not required to be performed by any officer known to the law, as they may deem expedient,” the financial town meeting had power to pass an ordinance (the town having power to pass ordinances), and to appoint an auditing committee thereunder, and direct the town treasurer not to expend any money in payment of any bill or claim against the town, unless said bill or claim shall first have been approved by said auditing committee. This assumption, in our opinion, is not justified. The court does not attempt to show how the powers, either of passing ordinances or appointing the class of agents mentioned in said section, passed to the financial town meeting. It does not appear to have considered that question at all, although the fact that the votes in question were passed at a financial town meeting appears in the court’s statement of the proof submitted. While, therefore, the decision in Foster v. Angell can well be supported upon the ground that the claim in question there was a disputed one and therefore mandamus would not lie, we are unable to affirm its soundness upon the second ground. On the contrary, we find, in the case as stated by the court in Foster v. Angell, no support for the opinion expressed. So in the case at bar we can not agree that said statute, providing that “ towns may elect all such town officers as are, or may be, by law required, and may appoint such other town 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,” can be construed to give to the financial town meeting the power to' appoint a committee without whose approval no bill or claim against that town can be paid by the town treasurer, though audited by the town auditor, and allowed and ordered paid by the town council, unless said claim has been reduced to a judgment against the town. Said action considered by itself no more gives the appointment of such special agents to the financial town meeting than it gives the election of town officers to such meeting. The taxpayers are the only electors who, under the constitution, can vote “upon any proposition to impose a tax or for the expenditure of money in any town or city,” but they do not constitute the town. The inhabitants of the town constitute the town as a body corporate. The other electors of the town have as great voting power, in the election of officers and the appointment of agents mentioned in said section 11, as the taxpaying voters. The powers of election are exercised by all the electors in the town meeting, except in towns divided into voting-districts, and in such case in the meetings in the several districts. The power to impose a tax or to expend money is exercised by the taxpaying voters in the financial town meeting. When, in a financial town meeting, the taxpaying electors vote to expend money for a specific purpose .and appropriate a sum of money therefor, the money so appropriated can only be lawfully applied to that purpose. The .appropriation when made, however, is for the benefit of the town, of all the inhabitants of the town, and not for the benefit of the taxpayers alone, and the moneys so appropriated become town moneys to be applied for the town purposes for which they were appropriated. While such moneys must be applied to the purposes and only to the purposes for which they were appropriated, the taxpayers in financial town meeting can no longer order or forbid the disbursement of such moneys within and for the purposes for which they were appropriated. If the financial town meeting is not only to appropriate money for a specific purpose, as for the support of the town asylum, but also to insist upon voting again, by itself or its committee, upon the expenditure of the sum required every time a few pounds of meat or a bag of flour is to be purchased, and forbid the payment of every bill incurred by the town through its officers and agents, unless so by itself or its agent voted to be paid, and leave every creditor of the town to his action at law, there will be no need for any other officer or agent of the town in the matter of the expenditure of money except the committee appointed by the financial town meeting, and Gen. Laws, R. I. 1909, cap. 50, § 4, will be of little effect. The section reads: “The town council of each town shall have full power to manage the affairs and interests of such town, and to determine all such matters and things as shall by law come within their jurisdiction.” The words “full power to manage the affairs and interests of such town” seem to justify the construction given to them by the towns since the statute was first enacted, viz.: that they constitute the town council as the governing body of the town. It is difficult to see how the language could have been amplified so as to more clearly express this intent. That the town council is such governing body of the town, and that it has full power to pass upon, adjust, and order paid claims against the town, is further clearly indicated by the statutes providing for the collection of claims against towns. Sections 12 and 13, cap. 46, Gen. Laws, 1909. Thus, “ Sec. 12. Every person who shall have any money due him from any town or ■city, or any claim or demand against any 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.”

“ Sec. 13. On judgment being obtained for such debt, damages or demand, in case said treasurer shall not have sufficient of the money of such town or city in his hands to satisfy and pay the judgment obtained and the charges expended in defending such suit, the said treasurer shall make application to any justice of the peace in such town or city, and thereupon the justice shall grant a warrant to the town sergeant of such town, requiring him to warn the electors of the town to hold a town meeting, at such time and place as shall be appointed, or to the mayor of such city requiring him to call a special meeting of the city council of such city, for the speedy ordering and making a tax, to be collected for the reimbursement of said treasurer.”

These statutes also throw light on the question which we have considered, supra, i. e., that the money after it has been raised by a tax and paid to the town treasurer is no longer the money of the taxpaying voters, but the money of the town. It is the money of the town before the appropriations have been made if already in the hands of the town treasurer, and in making appropriations of the same for town purposes the taxpaying voters in financial town meeting are simply setting apart portions of such money for certain purposes. The statute cited supra provides for the presentation of claims to the town council, the body established by statute and given “full powers to manage the affairs and interests of such town.” The statute concerning collection of claims against a town, passed in 1659, provided “that it shall be lawfull for any plaintiff against any towne in this Collony in any actionable case, to arrest the Towne Treasurer, who (beinge arrested) shall consult with the towne or Towne Counsell, whether to compound or stand out the suite. ” It is to be observed that even at that early date the town treasurer was to “ consult with the Towne or Towne Counsell whether to compound or stand out the suite.”

By an act passed in 1677, claims against a town were to be presented to the town meeting as a condition precedent to a suit.

At the January session, 1854, p. 1059, it was provided as follows : “ Any person having any money due him from any town, or any demand against any town for any matter, cause or thing whatever, in order to obtain the same, may present a particular account of his debt or demand, and how contracted, to the town council of any town which is divided into election districts with the same effect as if presented to the electors when legally assembled in town meeting in conformity with the 13th section of the act of which this is in amendment.” This amendment was rendered necessary by the fact that in towns divided into voting-districts there was no longer any general town meeting. The act of which the above was an amendment, was “An act declaring towns to be bodies corporate, and prescribing the manner of recovering debts due from towns.” Dig. 1844, p. 296.

General Statutes, 1872, cap. 31, § 11, provided for the presentation of claims to town councils in all cases. This provision has been continued, and is now found in Gen. Laws, 1909, cap. 46, § 12, quoted supra.

After the adoption of the constitution,' although the two classes of voters met together in town meeting, propositions to impose a tax or for the expenditure of money were necessarily voted upon only by the taxpaying voters^ Gradually financial town meetings were provided for by special statutes for the different towns, for convenience in towns not divided into voting-districts, and from necessity in towns so divided, as in such towns the electors no longer came together on the general town-meeting day.

Chapter 402 of the Public Laws, passed April 30, 1909, is as follows: “Section 1. Chapter 40 of the General Laws, entitled ‘ Of the town council/ is hereby amended by adding thereto the following section:

££ £Sec. 42. In addition to the other officers which the town council of any town is authorized to elect, the town council of any town may elect one or more town auditors, prescribe their duties by ordinance, and fix their compensation.’

“Sec. 2. This act shall take effect from and after its passage, and all acts and parts of acts, and all town ordinances and by-laws, inconsistent herewith are hereby repealed.”

November 8th, 1909, the town council passed the following ordinance:

“An Ordinance Prescribing the Duties of and Fixing the. Compensation of Town Auditor:

“ It is ordained by the Town Council of the Town of Warwick,, in regular and lawful meeting assembled, as follows:

“ Section 1. The Town Council shall annually, at its first, meeting elect one or more Auditors.

££ Sec. 2. The Auditor or Auditors so elected shall be duly sworn to the faithful performance of their duties.

“ Sec. 3. It shall be the duty of said Auditor or Auditors so appointed, to examine all claims, debts, dues and demands presented to said town for payment for any and all work or services rendered or performed for and in behalf of the town, or for any and all stock and materials furnished to said town for its use upon any of its highways, bridges, public buildings or for any department of said town; and to pass upon said claims and report his findings to the Town Council.

“ Sec. 4. Said Auditor so appointed shall file a bond for the faithful performance of his duty, said bond to be of such amount as shall be satisfactory to the Town Council and to run to the Town Treasurer as liquidated damages for the breach of any of the duties prescribed herein.

“Sec. 5. The compensation of said Auditor or Auditors shall be fixed annually by the Town Council.

Sec. 6. This Ordinance shall take effect immediately upon its passage.”

(4) As the most that is claimed for the “auditing committee” appointed by the financial town meeting is that he is an agent for the transaction of “town business not by law required to be performed by any officer known to the law,” it seems clear that, since the passage of the town ordinance by the town council under chapter 402 of the Public Laws, prescribing that “ it shall be the duty of said Auditor or Auditors so appointed, to examine all claims, debts, dues and demands presented to said town for payment for any and all work or services rendered or performed for and in behalf of the town, or for any and all stock and ’ materials furnished to said town for its use upon any of its highways, bridges, public buildings or for any department of said town; and to pass'upon said claims and report his findings to the Town Council,” and the election of a town auditor, there is an officer known to the law for the transaction of the town’s business of auditing accounts, and that upon the passage of said ordinance and the election of said auditor there could remain in the financial town meeting no right to appoint an .•agent for the performance of such duties. The auditing committee attempted to be appointed by said vote was directed not •only to audit bills and claims against the town but was given power to decide whether such bills and claims should be paid by the town treasurer. The section relied upon in the minority opinion, section 11, cap. 46, Gen. Laws, 1909, authorizes towns to appoint “such special agents for the transaction of any town business not by law required to be perforvied by any officer known to the law, as they may deem expedient.” As we have seen, by section 4, cap. 50, Gen. Laws, 1909, “The town council of each town shall have full power to manage the affairs and interests of such town, and to determine all such matters and things as shall by law come within their jurisdiction.”

As we have before shown, the statute requires the presentation of claims to the town council as a prerequisite to a suit against the town. It can not well be supposed that the presentation of claims is required to be made to a body with no power to act upon them, either to order them paid or refuse to do.so. If any matter or thing can be said by law to come within the jurisdiction of the town council, it seems clear that claims so presented do so come within it. Considering said sections 12 and 13, chapter 46, in connection with said section 4, chapter 50, it seems to us there can be no question as to the power of the town council to pass upon, allow, and order paid claims against the town, or as to the duty of the town treasurer to pay claims so allowed and ordered paid. The power attempted to be given to the auditing committee by the vote of the financial town meeting in this case, to pass upon, allow, and decide whether bills and claims against the town should be paid,was an attempt on the part of said financial town meeting to appoint an agent for the transaction of town business by law required to be performed by officers known to the law, viz., the town council. The appointment of an agent to transact such town business could not be made even by the town itself, under the provisions of said section 11, still less by the financial town meeting to whom the power of appointing such an agent is not given by the section. What is attempted by the votes passed at the financial town meeting is to transfer from the town council to the auditing committee the powers of allowing and ordering payment, by the town treasurer, of bills and claims against the town.

In what has been said upon the case of Foster v. Angell, we have not been unmindful of the doctrine of stare decisis, but in our opinion the court in that case does not state the law correctly. We feel confident that if the court had examined the question as carefully as it would have done if its decision had depended solely upon the point discussed, the law would have been differently interpreted. The reasoning employed by the court so clearly fails to support the opinion given, that it should not be followed. If the financial town meeting is to have the power to pass ordinances and elect agents with powers such as were attempted to be given by it in this case, the source of such power should be legislative, not judicial.

(5) The respondent admits that the petitioner has a claim against the town of Warwick for goods sold and delivered according to the account annexed to. the petition; that said goods were delivered to and used in the town asylum of said town; that its bill therefor has been approved by the town auditor, and allowed by the town council of said town and ordered paid; that there are funds in the hands of the respondent Herbert W. Barber, town treasurer of said town, which are properly applicable and are sufficient for the payment of said claim, and that he refuses to pay said claim because the same has not been approved by the auditing committee elected at said financial town meeting.

These admissions exclude everything in the nature of defence. The refusal to pay is based solely on the fact that the claim has not been approved by the “auditing committee” appointed at the financial town meeting.

Under these admissions, no defence to a suit at law against the town remains; for no one has ventured to suggest that the approval or disapproval of the “ auditing committee” appointed by the financial town meeting would be at all material on the trial of such a suit. There remains, therefore, only the plain ministerial duty, on the part of the town treasurer, to pay the claim.

The minority opinion states, as a further objection to the granting of the writ, “that the petitioner has a plain and adequate remedy at law by his action against the town by the express provisions of the statute,” and proceeds to argue that the previous decisions of this court upon this question should be overruled. This would render all that has gone before in said opinion unnecessary, as a decision upon this point adverse to the petitioner would have disposed of the case at the threshold. In these circumstances a review of these cases seems proper in order that we may clearly understand just what it is proposed to overrule.

In Portland Slone Ware Company v. Taylor, 17 R. I. 33, 34, 35, 36, the court said: “It appears that authority was given to the district by Pub. Laws, R. I. cap. 726, of June 13, 1888, to borrow a sum not exceeding one hundred thousand dollars, to be used by said district for roads, sewerage, water supply, fire purposes, and public buildings, and for no other purposes, under the direction of the district council; that the district duly authorized the district council to borrow the sum of one hundred thousand dollars upon the bonds of the district, which has been done, and the proceeds have been deposited in the Wake-field National Bank, as a special deposit for the purposes aforesaid. In pursuance of the authority so given, the district council contracted with the Portland Stone Ware Co. for the drain pipe to be used for the purpose of sewerage, and, after delivery, gave to said company two orders directing the treas-surer of the district to pay the bills thus incurred out of said fund, which is ample to meet said orders; but the treasurer refuses to pay said orders, whereupon these petitions for mandamus are filed. . . . We come, then, to the question whether the creditor can maintain his petition. It appears that the fund, out of which payment is sought, is a special fund, on special deposit for a special purpose. The expenditure of this fund is expressly given to the district council. So far as the treasurer is concerned, he has simply the ministerial duty to pay it out under the direction of the council. In cases of this kind mandamus will lie. . . . But the respondent contends that the creditor has a remedy by action against the district, which is not only adequate but exclusive, and that no mandamus can issue until after judgment and refusal or neglect to pay. The cases already cited are sufficient to show that mandamus may issue without an action, and why should we say that a party must sue for a claim that, so far as appears, is not and cannot be disputed? The accounts are allowed by the proper authority, and ordered to be paid from a fund set apart for the purpose for which the debt was incurred. This is all that could be done on an audited account. Indeed, it is an audited account, upon which the duty of a treasurer, unless he can show some error or fraud, on account of which this court should withhold its order, is the ministerial duty to pay to the extent of the fund. To hold otherwise would enable a treasurer, of his own motion, to put the creditor to the delay and the district to the expense of a suit, and that, too, against its will and order. Moreover, the judgment in such case would be against the district generally, and might be larger in amount than the sum authorized; whereas, in the present proceedings, there can be no order beyond the amount of the fund.”

In Simmons v. Davis, 18 R. I. 47, the court said: “ The case as it now stands, therefore, is one in which the petitioner on the one hand, holds an order on the town treasurer for payment, in the sum of one hundred dollars, which, the petitioner contends, and offers proof to show, is justly due and owing to him, while on the other hand the respondent contends and offers proof to show, that said order was erroneously issued, that said claim is fraudulent, and that said town is not indebted to th.e petitioner in any sum whatsoever. In other words, there is a dispute between the petitioner and the respondent as to the validity of the claim in question, and as to the liability of the town to pay the same. This being so; we think the petitioner should be left to his action at law to substantiate ¿is claim. For it is only in a clear case of indebtedness on the part of a municipal corporation, that the court will compel payment by writ of mandamus. Nor will the court in such a proceeding attempt to decide as to the validity of a disputed claim. See Portland Stone Ware Co. v. Taylor, 17 R. I. 33.”

In Times Pub. Cb. v. J. Ellis White, City Treas., 23 R. I. 334, the court said: “We think the petition states a case for mandamus, and that the demurrer must therefore be overruled. It appears from the petition that the petitioner has a just claim against the city, which was properly contracted by the school committee thereof; that said claim has been duly passed upon and ordered paid by said school committee; that there are funds in the hands of the defendant subject to the order of said school committee, which are properly applicable to and are sufficient for the payment of said claim, and that he has no defence whatever which could be set up in any court against the payment thereof. In short, the case shows the mere refusal on the part of the defendant to discharge a plain ministerial duty; and it is clear that in such a case mandamus will lie. Portland Stone Ware Co. v. Taylor, 17 R. I. 35.”

In Foster v. Angell, 19 R. I. 285, 287, the court said: “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, supra.”

In Foster v. Angell, the court, however, dismissed the petition, as stated supra, because the bill had not been approved by the auditing committee appointed by the financial town meeting.

These cases are decisive of the case at bar on this question. They state the rule so clearly that it need not be restated here.

The minority opinion, attacking the authority of these cases, says: “The latest case in this court in which Portland Stone Ware Co. v. Taylor, was relied on for the issuance of mandamus was the recent case of Putnam Foundry and Machine Co. v. Town Council, 28 R. I. 422 (1907) in which the relator sought to compel the respondent 'to cause to be executed a contract in writing for the reconstruction of the heating apparatus of the town building of said town of Barrington In denying the writ, Mr. Justice Johnson comments upon and commends the application of Portland Stone Ware Co. v. Taylor, to the facts and the law presented in that case and then proceeds, as follows: ' To warrant the issuance of a writ of mandamus, the petitioner must show first a legal right to have the act done which is sought by the writ; and second, it must appear that the act which is to be enforced by the mandate is that which it is the plain legal duty of the respondent to perform, without discretion either to do or refuse; and third, that the writ will be availing as a remedy, and that the petitioner has no other plain, speedy, and adequate remedy. Sweet v. Conley, 20 R. I. 381.

“We are of the opinion that the rule thus laid down is correct and should hereafter be followed. While it is not necessarily opposed to Portland Stone Ware Co. v. Taylor, it unquestionably states the correct rule and the .previous decisions of the court above cited, which have sought to extend the scope of the decision in Portland Stone Ware Co. v. Taylor, should not longer, if they have heretofore, be considered as justified by it. In thus deciding we change no property rights and impair no vested interests, but merely say that this remedy is not available except upon certain conditions, one of which is that there is not other ' plain, speedy, and adequate remedy; ’ and thus the rights of all relators are fully preserved and protected.”

We have no hesitation in agreeing that the rule laid down in Putnam Foundry & Machine Co. v. Town Council is correct and should be followed. In that case, however, after stating the facts in Portland Stone Ware Co. v. Taylor, the court said: “The mere statement of the case is sufficient to show that it had nothing in common with the case at bar, except that it was a petition for mandamus.” That statement applies with equal accuracy in comparing Putnam Foundry & Machine Co. v. Town Council with the case now before us. There it was sought by mandamus to compel the town council to cause to be executed a contract in writing for the reconstruction of the heating apparatus of a town building. Here it is sought to compel the respondent town treasurer to pay a bill against the town for goods sold and delivered; and the respondent admits that the petitioner has a claim against the town for goods sold and de7 livered according to the account annexed to the petition; that said goods were delivered to and used in the town asylum of said town; that the bill therefor has been approved by the town auditor, and allowed by the town council of said town and ordered paid; that there are funds in the hands of the respondent town treasurer which are properly applicable and are sufficient for the payment of said claim.

As to the statement quoted supra, that “the previous decisions of the court above cited, which have sought to extend the scope of the decision in Portland Stone Ware Co. v. Taylor, should not longer, if they have heretofore, be considered as justified by it,” it appears to us that the assumption that said ■cases have sought to extend the scope of the decision referred to is not justified. In Portland Stone Ware Co. v. Taylor the court says: “ It appears that authority was given to the district by Pub. Laws, R. I. cap. 726, of June 13, 1888, to borrow a sum not exceeding one hundred thousand dollars, to be used by said •district for roads, sewerage, water supply, fire purposes, and public buildings, and for no other purposes, under the direction ■of the district council; that the district duly authorized the district council to borrow the sum of one hundred thousand •dollars upon the bonds of the district, which has been done, and the proceeds have been deposited in the Wakefield National Bank, as a special deposit for the purposes aforesaid.” The essential facts were the authority given by the General Assembly to the district to borrow a certain sum to be used for certain purposes under the direction of the district council; the authority given by the district to the district council to borrow said sum upon the bonds of the district, the contract by the district council with the Portland Stone Ware Co. for materials to be used for sewerage and the delivery of said materials; the orders given by the district council directing the treasurer of the district to pay the bills thus incurred out of said fund; and the refusal of the treasurer to pay said orders. The deposit of the sum raised by the sale of the bonds in the bank was merely a proper incident in the transaction, but could in no way affect the question of mandamus to the treasurer to pay the orders. The special nature was given to the fund by the act of the General Assembly, limiting the purposes for which it could be used under the direction of the district council. In other words, it could properly be applied to those purposes and to no other purposes. It was clear that it was properly applicable to these purposes, and no proof that it was so applicable was needed. It was therefore clear that mandamus would lie. We have quoted supra what the court said as to the contention that the creditor had a remedy at law against the district, not only adequate but exclusive, and that mandamus would not issue until after judgment and refusal to pay, We will therefore only quote the words, p. 36, “ and why should we say that a party must sue for a claim that, so far as appears, is not and cannot be disputed.”

The other cases in this State have not sought to extend the-scope of Portland Stone Ware Co. v. Taylor. The cases are in harmony upon this question.

It is true that one of the rules at common law is that the writ will not issue if there is a plain, adequate, legal remedy. A multitude of cases could be cited where the rule has been rigidly applied. A great many cases could also be cited where the rule-has been modified and greater regard paid to the adequacy of the remedy than in the older cases.

In Tawas &c., R. R. v. Iosco Circ. Judge, 44 Mich. 483, the court said: “ In granting this remedy, courts are always disposed to confine it to cases where there is no other adequate specific remedy. But the existence of a remedy of another nature which is not adequate furnished no reason for refusing it, if the necessity of justice requires it. We had occasion in La Grange, relator, v. State Treasurer, 24 Mich. 468, to consider this jurisdiction quite fully and we think the views there expressed are in accordance with the soundest authority. Mandamus is a prerogative writ designed to afford a summary and specific remedy in those cases where without it the party will be subjected to serious injustice. As pointed out by the eminent authorities there cited, it is from its very nature a remedy that cannot be hampered by any narrow or technical bounds. The right coupled with the necessity of such a vindication of it supports the jurisdiction, and the court in using its discretion, while careful not to use this writ when it is not essential, will apply it where it is.”

In La Grange v. State Treasurer, 24 Mich. pp. 475-6, 477, cited in the last-mentioned case, the court said: “In these cases of municipal bonds, the townships cannot be made to suffer for the legally wrongful action of their-officers, and they have a right to recall the unauthorized securities. The duty of the treasurer is not discretionary. It is their absolute right to'demand, and his absolute duty to surrender, what is held in the files of the office in their wrong. The duty is unconditional and it is clear.

“ We are then to consider whether a mandamus is the proper remedy for a refusal to comply with this duty.

“It was urged on the argument that this writ will only lie where there is a positive statutory duty and an entire absence of any other remedy. And it is claimed that the decisions heretofore made sustain this view. We do not know of any such doctrine, and have never understood it to have been established in this state or elsewhere. In the frequent instances of application for this writ, the occasion has quite as often been to-enforce duties not imposed by statute, as obligations which were statutory. • There may very possibly be found isolated expressions, which, apart from their context and the occasion of their utterance, might favor one of the grounds claimed. Thus,, in People v. Judges of the Branch Circuit Court, 1 Doug. Mich. R. 319, it was said there must be 'no other remedy.’ In that case there was a better remedy in the ordinary course of law which reached all that could be desired. But in People v. Judge of the Wayne Circuit, 19 Mich. 296, the doctrine was laid down more guardedly, that a relator must show ' a clear legal right, and that there is no other adequate remedy.’ And in People v. State Insurance Company, 19 Mich. R. 392, it was expressed more fully that the writ might issue for a specific duty where there is no other'specific and adequate remedy.’ . . .

“For most rights the ordinary legal remedies are ample to-prevent a failure of justice, as upon private contracts a judgment for damages will usually suffice. But there are cases where, if contracts cannot be enforced specially, there will be a failure of justice; and as the law can give no specific remedy in such cases, parties are compelled to resort to equity. If the law had the requisite machinery, no doubt it would so interfere-as to render a resort to equity needless. And in all cases where it can enforce rights specifically, and no other relief is adequate, it certainly would be unjust not to do so. Unfortunately its-powers are limited. But in cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.

“The question then arises whether there is any other adequate, specific, legal remedy. . . .

“ There is the strongest possible reason why a party should not be turned over to the tedious and dilatory process of a long suit, when there are no issues that need it. The only question that could arise in the class of cases now before us is, whether the bonds are in the possession of the respondent. If they are, the right to have them restored is a legal conclusion not open to question.

“ The same reasons would apply to render it improper to turn a party over to a suit in replevin, if there were not still more serious objections to it, as well as doubts of its applicability.”

In Thomas v. Mason (W. Va.), 26 Lawyers’ Rep. Ann. 727, 733, the court said: “Again, it is said that plaintiff’s application for this writ is premature; he must first reduce his claim to judgment, and then apply; and it is added, on behalf pf defendant, ' when he sues at law we will meet him on the merits, and show that the facts alleged are not true, and that his claim is without merit.’ But the answer to that is, this writ and petition must be taken at their face value, and the facts alleged therein as true; and among them we find the averment that there is no money in the treasury of the town to pay this claim, and the town refuses to pay, or to lay a levy for that purpose, or in any way to provide for its payment. Upon principle, why sue in assumpsit? An ordinary suit at law, ending in an ordinary judgment, would bring him no nearer fruition than when he commenced. In this case, where no facts are in dispute, such a suit would be a vain and idle thing, with mandamus still to be brought as his only means of compelling payment; for this municipal corporation is possessed of nothing tangible,— nothing subject to levy. His right is undisputed, in our view of the law, but this action, of assumpsit would leave its violation just as far from being redressed as when he put that remedy in motion, when to this remedy he must come at last, as his only means of obtaining satisfaction, — a remedy with all the judicial methods of making up and trying all issues of law and fact. There is no reason, and there can be none, which does not impliedly involve a fiat contradiction of one or moré facts which have been accepted as true. In this day, therefore, the plaintiff should not be sent this long way round to reach a point nearly and directly in view.”

In the Matter of Freel, 148 N. Y. 165, an appeal by the comptroller of the city of Brooklyn from an order made by the general term of the second department, affirming an order of the special term, which directed that a peremptory mandamus issue requiring the comptroller to approve of the relator’s claim and make and sign a warrant for its payment, the court said (p. 170): “The first question presented, and with our views of the case the only one that need be determined, is whether the comptroller in approving such claims and issuing warrants for their payment acts judicially or only ministerially. . . . We think it was not the intention of the statute requiring the comptroller to approve of claims against the city to give him any judicial power in regard to a claim where, by the agreement under which it arose, the action of the engineer and commissioner was to be final and conclusive. There may be cases where the comptroller would be authorized to act otherwise than ministerially as to'claims presented to him for his approval, but in a case like this, where, by the terms of a valid contract between the parties, the action of the engineer and commissioner is made conclusive, we think the comptroller has only a ministerial duty to perform in the approval of the claim.

“If fraud on the part of the contractor or officers of the city had been established, it may well be that it would invalidate the action of the engineer and commissioner, so that a certificate given would be invalid. But such is not this case.”

In People ex rel Rodgers v. Coler, 166 N. Y. 1, the court said: “There is no dispute with respect to the facts upon which this controversy depends. They are all admitted upon the record, and the appeal involves only questions of law. . . . The duty enjoined upon the comptroller, the performance of which is 'commanded by the writ, was ministerial; and if the relator was not entitled to the writ absolutely, and as matter of legal right, the court below had power to grant it, in the exercise of discretion, and, having granted it, the action of the court in that respect is not re viewable here.”

In People ex rel Beck v. Coler, 34 App. Div. 167, 168, 169, cited on another point in People ex rel E. C. T. Club v. State R. Commission, 190 N. Y. 31, Cullen, J. said: “ On December 10, 1897, at a meeting of the inhabitants of school district No. 1 of the towns of Castleton and Middletown, Richmond county, a resolution was passed authorizing the trustees of the school district to purchase a new site and build a new schoolhouse thereon, and for that purpose to raise the sum of 180,000 by tax upon the district. Thereafter the trustees of the school district entered into a contract with the relator for the construction of the school building for the sum of $79,500, payments to be made as the work progressed, on the certificate of the engineer and the architect in charge of the construction of the building. The relator commenced the prosecution of the work, and in February, 1898, received a certificate from the engineer and the architect that he was entitled to a payment of at least the sum of $750. This certificate was presented to the comptroller for payment, and to the auditor of the borough for audit. The comptroller refused payment, and the 'auditor declined to act on the claim. Thereupon the relator applied to the special-term for a writ of mandamus to the auditor and comptroller to ascertain and certify the value of the work performed and materials furnished by the relator under his contract, and to audit and allow such value as ascertained, not exceeding the amount certified by the engineer and the architect. From an order granting the writ of mandamus as prayed for, this appeal is taken.

“ The first claim of the appellants is that the relator’s remedy is by action and not by mandamus. The rule that a mandamus will not be granted where the party has a remedy by action is one addressed to the sound discretion of the court, and is not of universal application. This in Matter of Freel (148 N. Y. 165), the comptroller of the city of Brooklyn was required by a writ of peremptory mandamus to approve the relator’s claim for work and material furnished under a contract with the city for the construction of a reservoir, and to make and sign a warrant for its payment. There was no question in that case but that the relator might have sued the city for the claim in an action at law. In People ex rel Kings Co. Gas Co. v. Schieren (89 Hun. 220), a writ of mandamus was issued against the comptroller and auditor to examine the relator’s claim for gas furnished’ under a contract with the city, and to certify the value thereof. Undoubtedly, also, in this case an action on the claim would lie. We are of opinion that, where the right of a party to payment from the city is clear, and there are funds on hand applicable to such payment, the court may and will, in the exercise of a sound discretion, compel by mandamus a ministerial officer to audit and pay the claim; though if the city itself repudiated or denied the existence of the obligation, the rule would be different.”

In Ray v. Wilson (Fla.), 14 Lawyers’ Rep. Ann. 778, the court said: “ The duty to pay, where the paying officer has the funds to pay with, and the officers auditing and ordering payment have acted within the scope of their powers and there is no fraud attached to the claim, is merely ministerial, and mandamus will lie to compel its'payment. -It is true, the right to this remedy was doubted, though not decided, in People v. Lawrence, 6 Hill, 244, but such right is affirmed in the later New' York cases. If the claim is not one of a character payable by the county or municipality, or if the board auditing it and ordering its payment had no authority to do so, or if there is fraud (or, it may be mistake, Shirk v. Pulaski County, 4 Dill, 209), neither of which conditions is pretended to exist here, the paying officer should refuse to pay it. It is true that in some cases the right to the writ is put on the ground that an ordinary action at law will not lie against the county or municipality on the claim. We fail to see that such an action against the county is a sufficient remedy. If the claim is lawful and has been audited and ordered paid.by the proper authority, and the officer whose function it is to pay has been furnished with and has the public money for its payment, there is a palpable insufficiency in a. remedy which would give him a personal judgment against the county or municipality, to be followed it may be by a mandamus to compel the levy of a tax to pay the same in case the money in the treasury should have been used, or there was not enough to pay the accrued interest, and all this too, simply because an officer whose duty it is to pay lawful claims sees fit to refuse to do his duty. The holder of such a claim has an immediate right to the money provided and held for his payment, and a remedy which imposes any of the delay indicated and its attendant expense, is entirely inadequate. A remedy which will avoid mandamus must be both specific and adequate.”

High, Extr. Leg. Rem. § 356, states the rule: “The act of paying a demand or claim against a municipal corporation, after it has been duly audited and the amount fixed, like the act of drawing a warrant upon the disbursing officer just considered is regarded merely as a ministerial duty, unattended with the exercise of any judgment or discretion, and hence subject to control by mandamus. And where claims against a municipal corporation have been duly audited and allowed and payment is ordered by the proper authority, and there remains only the ministerial duty on the part of the treasurer or other disbursing officer of making the payment, mandamus will lie for a refusal to perform this duty, there being no other adequate and specific remedy for the party aggrieved.”

2 Spelling, Injunc. and other Extra. Rem. § 1375, states the rule as follows: “In order that the existence of another remedy shall constitute a bar to relief by mandamus, such other remedy must not only be an adequate remedy in the general sense of the term, but it must be specific and appropriate to the circumstances of the particular case. It must be such a remedy as is calculated to afford relief upon the very subject of the con troversy. For if it is not adequate to afford the party aggrieved the particular right which the law accords him, mandamus will lie, notwithstanding the existence of such other remedy. In other words, it is not merely the absence of other legal remedies, but their inadequacy coupled with the danger of failure of justice, that would result without interference by an extraordinary remedy which usually determines the propriety of this species of relief. . . The remedy at law which will operate as a bar to mandamus must generally be such a remedy as will enforce a right or the performance of a duty. A remedy cannot be said to be fully adequate to meet the justice and necessities of a case, unless it reaches the end intended and actually compels a performance of the duty in question, and is not an adequate remedy within the meaning of the rule under consideration. Such other remedy, in order to constitute a bar to mandamus, must be adequate to place the injured party, as nearly as the circumstances of the case will permit, in the position which he occupied before the injury, or omission of duty complained of.

“The controlling question is not, 'has the party a remedy at law?’ but 'Is that remedy fully commensurate with the necessities and rights of the party under all the circumstances of the particular case? ’ Or, as was said in one case,' To supersede the remedy by mandamus the party must not only have a specific remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus.” The case last quoted by Spelling is Raisch v. Board of Education, 81 Cal.. 542, 550, citing Fremont v. Crippen, 10 Cal. 211.

From these cases and authorities it appears that this court is not without support upon this.question in other jurisdictions.

The minority opinion further says: “The overwhelming weight of authority in other jurisdictions clearly supports the doctrine affirmed in Putnam Foundry & Machine Co. v. Town Council of Barrington, supra, that the duty to be performed must be clearly imposed by law, and that the petitioner has no other adequate remedy,” and then says: “In the case at bar there is no such duty imposed by law and the petitioner has a plain and adequate remedy at law specifically provided for the very case here presented.” As to the statement that “in the case at bar there is no such duty imposed by law,” we have already quoted Gen. Laws, 1909, cap. 50, § 4, supra: “The town council of each town shall have full power to manage the affairs and interests of such town, and to determine all such ■ matters and things as shall by law come within their jurisdiction,” and have said, “ The words ‘ full power to manage the affairs and interests of such town ’ seem to justify the construction given to them by the towns since the statute was first enacted, viz.: that they constitute the town council as the governing body of the town. It is difficult to see how the language could have been amplified so as to express more clearly this intent. That the town council is such governing body of the town, and that it has full power to pass upon, adjust and order paid claims against, the town is further clearly indicated by the statutes providing for the collection of claims against towns. Sections 12, and 13, cap. 46, Gen. Laws, 1909.” This court in Foster v. Angell, supra, said: “The duty of auditing bills against a town is nowhere expressly devolved upon the town council thereof, although it is clearty implied from the provisions of Pub. Stat. R. I. cap. 34, § 12,” which is the same as cap. 46, § 12, Gen. Laws, 1909. Being clearly implied from the words of the statute, it is the law, and the duty is imposed by law as effectually as if specifically provided by the statute.

As to the further statement in the minority opinion that “ the petitioner has a plain and adequate remedy at law specifically provided for the very case here presented,” the remedy at law exists. There can be no doubt as to that. Is it sufficiently speedy and adequate to forbid the exercise of the court's discretion in granting the writ? The legal remedy provided is found in Gen. Laws, 1909, cap. 46, §§ 12, 13, and 14. Section 12 provides “that every person who shall have any money due him from any town or city, or any claim or demand against .any town or city for any matter, cause or thing whatsoever shall take the following method to obtain the same.” Then follow the provisions that a particular account of his claim, debt, damages, or demand, and how incurred or contracted, shall be presented to the town or city council; and, that being done, if just and due satisfaction is not made him within forty days thereafter, he may commence his action against the treasurer for the recovery of the same.

Section 13 provides that in case, after judgment obtained, the treasurer shall not have in his hands sufficient money of the town or city to pay said judgment and the costs and charges expended in defending the same, the treasurer shall apply to a justice of the peace for a warrant to warn the electors to hold a town meeting for the speedy ordering and making of a tax to be collected for the re-imbursement of the treasurer.

Section 14 provides, in case the electors, upon warning as provided in section 13, shall not take due and effectual care to re imburse, pay, and satisfy said treasurer the money, costs, and charges by him expended, or recovered against him, that upon petition in the nature of a petition in equity to the Superior Court, setting forth the facts, the court may order the assessors of the town or city to assess upon the ratable property of said town or city, and the collector to collect, a tax sufficient for the payment of said judgment, with all incidental costs and charges, and the expense of assessing and collecting such tax. •Such is the procedure prescribed, and such is the remedy.

The petition to the court, provided for, is a petition “in the nature of a petition in equity.” It is well settled that a specific remedy in equity does not oust the legal jurisdiction in mandamus, but only appeals to the discretion of the common-law court. However, if we consider the remedy by petition in the nature of a petition in equity as simply a legal remedy that does not render it any more speedy and adequate than it would be if considered as a remedy in equity.

Is any good purpose served in remanding the petitioner to •such a legal remedy as is provided in said sections 12, 13, and 14, cap. 46, Gen. Laws, 1909? Is it a proper exercise of the discretion of the court to send the petitioner this long way around, which may result finally in the Superior Court, upon petition, ordering the assessors of the town of Warwick to-assess, and the collector to collect, a tax sufficient for the payment of the judgment obtained, when the petition before us- and the answer of the respondent show plainly that there is no issue to be tried’in a suit at law? As the court said in La Grange v. State Treasurer, 24 Mich, supra: "There is the strongest possible reason why a party should not be turned over to the tedious and dilatory process of a long suit, when there are no issues that need it.” And as the court said in Thomas v. Mason (W. Va.), 26 L. R. A. supra: “In this case,, where no facts are in dispute, such a suit would be a vain and idle thing with mandamus still to be brought as his only means; of compelling payment; for this municipal corporation is possessed of nothing tangible, — nothing subject to levy.” And in the case at bar, while mandamus would not have to be brought after judgment, the proceeding by petition in the nature of a, petition in equity to the Superior Court to order the assessment and collection of a tax to pay the judgment, would be quite as; dilatory a proceeding as the mandamus referred to in the Florida case. Upon authority and sound reason, the legal remedy provided by statute in this case is not sufficiently speedy and adequate to bar this court, in the exercise of a sound discretion,, from granting the writ of mandamus.

A proper case is presented. The petition for the writ is-granted.

Parkhurst and Sweetland, JJ., concur.