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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 $100,000 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 Company 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, at page 36 of 17 R. I., at page 1088, of 19 Atl., "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, etc., R. R. v. Iosco Circ. Judge, 44 Mich. 483, 7 N. W. 66, 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 re

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. 475-477, 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 posi tive 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.) 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. 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

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 flat contradiction of one or more 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, 42 N. E. 586, 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 (148 N. Y. 170, 42 N. E. 587): "The first question pre

such cases, parties are compelled to resort | edy he must come at last, as his only means 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 ques-sented, and with our views of the case the only tion, 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."

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* We

one that need be determined, is whether the
comptroller in approving such claims and is-
suing warrants for their payment acts judi-
cially or only ministerially. *
think it was not the intention of the statute
requiring the comptroller to approve of
claims against the city to give him any ju-
dicial power in regard to a claim where, by
the agreement under which it arose, the ac-
tion 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 ac-
tion 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 giv-
en would be invalid. But such is not this
case."

In Thomas v. Mason, 39 W. Va. 533, 20 S. E. 582, 26 L. R. A. 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 of 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 In People ex rel. Rodgers v. Coler, 166 N. value, and the facts alleged therein as true; Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. and among them we find the averment that St. Rep. 605, the court said: "There is no there is no money in the treasury of the town dispute with respect to the facts upon which to pay this claim, and the town refuses to this controversy depends. They are all adpay, or to lay a levy for that purpose, or in mitted upon the record, and the appeal inany way to provide for its payment. Upon volves only questions of law. The principle, why sue in assumpsit? An ordi- duty enjoined upon the comptroller, the pernary suit at law, ending in an ordinary judg-formance of which is commanded by the ment, would bring him no nearer fruition writ, was ministerial; and if the relator was than when he commenced. In this case, not entitled to the writ absolutely, and as where no facts are in dispute, such a suit matter of legal right, the court below had would be a vain and idle thing, with manda- power to grant it, in the exercise of discremus still to be brought as his only means of tion, and, having granted it, the action of compelling payment; for this municipal cor- the court in that respect is not reviewable poration is possessed of nothing tangible here." 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 rem

In People ex rel. Beck v. Coler, 34 App. Div. 167, 168, 169, 54 N. Y. Supp. 639, cited on another point in People ex rel. E. C. T. Club v. State R. Club, 190 N. Y. 31, 82 N. E. 723, Cullen, J., said: "On December 10,

ple v. Lawrence, 6 Hill (N. Y.) 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, Fed. Cas. No. 12,794), 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.”

1897, at a meeting of the inhabitants of | 615, 14 L. R. A. 778, the court said: "The school district No. 1 of the towns of Castle-duty to pay, where the paying officer has ton and Middletown, Richmond county, a the funds to pay with, and the officers auresolution was passed authorizing the trus-diting and ordering payment have acted withtees of the school district to purchase a new in the scope of their powers, and there is no site and build a new schoolhouse thereon, fraud attached to the claim, is merely minand for that purpose to raise the sum of isterial, and mandamus will lie to compel its $80,000 by tax upon the district. Thereaft- payment. It is true, the right to this remer the trustees of the school district enter-edy was doubted, though not decided, in Peoed 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. Thus in Matter of Freel, 148 N. Y. 165 [42 N. E. 586], 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 [35 N. Y. Supp. 64], 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."

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

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 controversy. 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.

law," we have already quoted Gen. Laws 1909, c. 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 pow er 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 The remedy at law which will operate as a town is further clearly indicated by the bar to mandamus must generally be such a statutes providing for the collection of remedy as will enforce a right or the per- claims against towns. Sections 12 and 13, formance of a duty. A remedy cannot be said c. 46, Gen. Laws 1909." This court in Fosto be fully adequate to meet the justice and ter v. Angell, supra, said: "The duty of aunecessities of a case, unless it reaches the diting bills against a town is nowhere exend intended and actually compels a per-pressly devolved upon the town council thereformance of the duty in question, and is not of, although it is clearly implied from the an adequate remedy within the meaning of provisions of Pub. St. R. I. 1882, c. 34, § 12," the rule under consideration. Such other which is the same as caption 46, § 12, Gen. remedy, in order to constitute a bar to man-Laws 1909. Being clearly implied from the damus, 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 from by Spelling is Raish v. Board of Education, 81 Cal. 542, 545, 22 Pac. 890, cit-tain the same." Then follow the provisions

ing Fremont v. Crippen, 10 Cal. 215, 70 Am. Dec. 711.

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

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, c. 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 ob

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 40 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 reimbursement 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 reimburse, 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 remand ing the petitioner to such a legal remedy as is provided in said sections 12, 13, and 14, c. 46, Gen. Laws 1909? Is it a proper exercise

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

PARKHURST and SWEETLAND, JJ.,

concur.

BLODGETT, J. (dissenting). I am unable to assent to the conclusion which the majority of the court have reached in this case. Inasmuch as the questions here sought to be raised involve the control of the expenditure of enormous sums of money, affect the gov ernment of every town in the state, bring into consideration constitutional provisions, and also involve an examination as to whether mandamus is the appropriate proceeding, it becomes necessary to state my views at some length. The exact amount at issue in the present case is $43.64, but the question here sought to be raised is whether the taxpaying electors, not only of Warwick with its assessed valuation for purposes of taxation of $22,185,764 (State Manual 1909), shall control through their duly selected agent the expenditure of moneys raised thereon for town purposes by taxation, but is state-wide in its effect, and the decision of it determines whether the taxpaying electors of all the towns of the state, which, excluding all the cities (according to said State Manual) have an assessed valuation of $126,136,389 assessed at the average rate of $1.08 on each

of the discretion of the court to send the petitioner this long way around which may result finally in the superior court, upon peti-hundred dollars of such valuation shall or tion, ordering the assessors of the town of shall not control the expenditure of the Warwick to assess, and the collector to col-in by taxation for town purposes, and excluamount of $1,362,273 annually raised therelect, a tax sufficient for the payment of the sive of state taxes, on this vast amount. judgment obtained, when the petition before us and the answer of the respondent shows plainly that there is no issue to be tried in

a suit at law? As the court said in La

The first ground of dissent is that the

question here sought to be raised is not properly raised and can be considered as in any

way before the court, only by a construction Grange v. State Treasurer, 24 Mich. 468, of the answer in the case which is contrary supra: "There is the strongest possible rea- to the fact. The majority of the court have son why a party should not be turned over considered the admission of the answer in to the tedious and dilatory process of a long this friendly proceeding "that there are suit, when there are no issues that need it." funds in the hands of the respondent, HerAnd as the court said in Thomas v. Mason, bert W. Barber, town treasurer of Warwick, 39 W. Va. 526, 20 S. E. 580, 26 L. R. A. 727, which are properly applicable and are sufsupra: "In this case, where no facts are in ficient for the payment of said claim" to dispute, such a suit would be a vain and idle mean that moneys have been duly approthing with mandamus still to be brought as priated therefor by the taxpayers. The arguhis only means of compelling payment; for ment that there is no defense to the claim, this municipal corporation is possessed of and hence that mandamus is an appropriate nothing tangible-nothing subject to levy." remedy, also rests upon the same contention And in the case at bar while mandamus and construction. Since it is evident that would not have to be brought after judg- there is a perfect defense, in that there has ment, the proceeding by petition in the na-been no appropriation therefor, the constructure 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,

tion given to the answer is not founded in fact. Upon request I have been furnished by both counsel in the case with a copy of the vote passed at the annual meeting of the taxpaying electors which is relied on to justify the contention that the money aforesaid was "applicable" for the purposes aforesaid, which vote is as follows: "November 17, 1908. Resolved, that a tax of 75 cents on

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