(108 A.)

See, also, State v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765; Charlotte, etc., R. R. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319; State v. Murlin, 137 Mo. 297, 38 S. W. 923; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S. W. 970; Harbison v. Iron Wks., 103 Tenn. 421, 53 S. W. 955, 56 L. R. A. 316, 76 Am. St. Rep. 682; Daniels v. Hilgard, 77 Ill. 640; W. W. Cargill Co. v. Minn., 180 U. S. 452, 21 Sup. Ct. 423, 45 L. Ed. 619; People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715; Opinion to the Governor, in Re Met. Park Loan, 34 R. I. 191, 83 Atl. 3.

it does not relate to the business conducted on such property; but the act affected equally all persons similarly situated, and in Horton v. Old Colony Bill Posting Co., supra, this court held that the enabling act and ordinances were each valid, and were not obnoxious to either the Constitution of Rhode Island (article 1, § 10) or the Constitution of the United States (article 14, of Amendments, § 1), as depriving a person of his property without due process of law, nor as denying to a defendant the equal protection of the laws, in violation of the Fourteenth Amendment of the Constitution of the United States.

theater throughout the day and evening performance.

Said section 5 operates alike upon all theaters in the city of Providence, and it can by no means be said to be clearly unfair or Suppose the Legislature, instead of passing unreasonable in its provisions applying to the act in question, classifying the theaters theaters in the city of Providence. Indeed, of the state according to cities, had passed a with the present high price of wages, it general enabling act authorizing the various would seem that the respondent is fortunate cities to adopt ordinances for the protection if he can obtain for $3 a qualified and duly of audiences in theaters against fire. Each approved fireguard to be in attendance on his city, pursuant to such authority, might adopt an ordinance, to meet the needs of the particular city, different from that adopted for every other city, and yet each ordinance would be valid, provided it was fair and reasonable. It is axiomatic that the Legislature can do that which it can delegate others to do. Each city would be permitted a wide latitude in determining its peculiar needs and appropriate remedy. Had each of our several cities passed an ordinance identical with the provisions of said section 5 as applicable to such city, could it be said that any one of such ordinances was clearly unfair and unreasonable?

Pub. Laws, c. 542, passed at the January session, 1910, was "An act authorizing cities and towns to regulate certain out-door advertising." Pursuant to this act the city of Providence passed chapter 443 of the Ordinances of the City of Providence, which ordinance provided with great detail for the regulation of billboards and out-door advertising. Said ordinance did not affect all classes equally. It prohibited the advertising of intoxicating liquors within 200 feet of a schoolhouse or church. It required billboards on roofs of buildings to be constructed in one section of the city, of incumbustible materials, and contained no such requirement for other sections of. the city. The enabling act and the ordinance passed pursuant thereof each defines the term "out-door advertising," and provides that the term "shall not include advertising located upon private property and relating exclusively to the business conducted on such property, or the sale or rental thereof, or advertising in or upon the cars and stations of any common carrier." If it is unnecessary to regulate out-door advertising relating to the business conducted on the property where the advertisement is located, it is not entirely clear why it should be necessary to regulate such advertising when

The respondent's other claims of unconstitutionality in section 5 have been sufficiently answered in the foregoing. We may add that as to article 1, section 10, of the Constitution of Rhode Island, it has been held in numerous cases that it is a provision guarding the rights of persons accused of crime, and that the rights of property of other persons are guarded by other clauses of the Constitution of this state, or by the provisions of the federal Constitution. State v. Keeran, 5 R. I. 497; State v. Armeno, 29 R. I. 431, 72 Atl. 216; State v. Rosenkrans, 30 R. I. 374, 75 Atl. 491, 19 Ann. Cas. 824; State v. Hand Brewing Co., 32 R. I. 56, 78 Atl. 499. East Shore Land Co. v. Peckham, 33 R. I. 541, 82 Atl. 487. In Reynolds v. Randall, 12 R. I. 522, the court said that "grammatically the provisions there seem to apply only in favor of persons accused of crime," yet in that case the court appears to give it a somewhat broader application.

In my opinion, said section 5 is not invalid for any of the reasons urged against it by the respondent.

SWEETLAND, J. (dissenting). I have examined the opinion of Mr. Justice VINCENT and that of Mr. Justice RATHBUN. From such examination it appears to me that the opinion of Mr. Justice VINCENT fails to appreciate the legal nature, of the relation between a theater licensee and a fire inspector which has been created by the statutory provision in question. Particularly is it to be regretted that in a vital matter, involving public safety, the majority should disregard the principles, heretofore prevailing in this state, by which the constitutional validity of statutory enactments ought to be tested. The recognition and application of those principles appear to me to be essential to the

preservation of the proper balance between | forming the labor and furnishing the material the respective powers and functions of those in question, and that the city council had no co-ordinate departments of our government, jurisdiction; the fact that such officer was perthe General Assembly and the Supreme forming public duties not divesting him of the Court. character of a municipal officer.

COUNCIL NOT ESTOPPED TO REMOVE STREET
COMMISSIONER.

The mere fact that work was done and material furnished upon the order of members of the city council did not estop the council from preferring charges against and removing a street commissioner by reason of having been interested in the contract as a member of the firm doing the work for the city; estoppel being available only in defense of a legal or equitable right or claim made in good faith, but never being asserted to uphold crime, fraud, or wrong of any character.

4-IMPLIED AS WELL AS EX-7. MUNICIPAL CORPORATIONS *m 159(2)
COUNCIL MAY ACT IN DOUBLE CAPACITY OF
PROSECUTOR AND TRIER IN PROCEEDING TO
REMOVE OFFICER.

A contract may be implied, as well as expressed.

(108 A.)

Argued before WATSON, C. J., and TAY- ney may amend and file additional charges LOR, MILES, and SLACK, JJ.

the case submitted to the council, and after, ment and control of the work and repairs on consideration thereof, the city council failed the city streets and sidewalks, and the work

to find that the charge of incapacity was made out, but a majority found that the charges of negligence and bad conduct had been made out as charged, and thereupon rescinded the appointments of the petitioners as street commissioners, and removed them from that office, and declared the offices vacant. To this action the petitioners objected, and moved to have all the charges against them dismissed, on the ground that they were not supported by the evidence. By a majority vote the motion was overruled.

This petition is brought to review that action of the city council, and the cases stand for hearing upon the questions raised by. the several motions above stated, except the first and fifth, which are not insisted upon in the petitioner's briefs. No claim is made that the work was done under a contract awarded upon bids advertised for; but the claim under the second motion is that the petitioners are not charged with having done the work and furnished the material under any contract, and that in fact the firm did not do it under any contract.

[1-3] It is true that the petitioners are not charged in express language with having furnished labor and materials under an express contract; but a set of facts are set forth in those charges which the petitionees contend amount to an implied contract, and we quite agree with that contention. A contract may be implied as well as expressed. Porter v. Evert's Estate, 81 Vt. 517, 71 Atl. 722; Parkhurst v. Krellinger, 69 Vt. 375, 38 Atl. 67; City of Bangor v. Ridley, 117 Me. 297, 104 Atl. 230. The strict rules of the commonlaw pleading are not required in a case like this. Rutter et al. v. Burke et al., 89 Vt. 14, 93 Atl. 842. If the charges fairly inform the officer to be removed of the accusation upon which he is to be tried, they are sufficient. It was not necessary to state in the charges in express language that Bergeron was interested in the contract. It was sufficient to allege the facts constituting the contract. This we think was done. It is alleged that the firm of Bergeron & Son furnished the material, and did the work, and received pay for the same from the city through the approval of the city. street commissioners, contrary to the provision of section 124 of the city charter. This was sufficient to apprise Bergeron with what he was charged.

[4] Considering the question on Bergeron's own testimony, the materials were furnished and labor performed under an implied contract. He says that the firm did it at the request of John W. Coffey, superintendent of the streets of Burlington, and that he was paid for it out of the city treasury. Here we have the request expressly given by the street commissioner's department, the body to

performed and materials furnished upon that request. A fair test of this transaction may be made by supposing that the city had refused to pay the bill and the company had brought suit to collect it. Upon what ground could the company recover? But one answer can be given, and that is: Upon an implied contract. And such was the contract in this case. City of Bangor v. Ridley, supra. The motion was properly overruled.

[5] The third motion to dismiss rests upon the ground that Bergeron was not an officer of the city in performing the labor and in furnishing the material in question, within section 124 of the city charter, and that the city council had no jurisdiction in the premises. In certain circumstances and for certain purposes, municipal officers, having charge of and being required to perform certain public duties, are held to be public officers; but this by no means divests them of the character of municipal officers. Their true character is well stated in Hafford v. New Bedford, 16 Gray (Mass.) 297, wherein it is said:

"The members of the fire department of New Bedford, when acting in discharge of their duties, are not servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as officers of the city, charged with the performance tion will lie against the city for their negligence of a certain public duty or service; and no acor improper conduct, while acting in the discharge of their official duty."

The motion was properly overruled.

[6] The fourth motion to dismiss rests upon the ground that the work was done and material furnished upon the order of the city aldermen; that the city council, who preferred the charges, are composed in part only of the aldermen who ordered the work done and material furnished, and that therefore the city council are estopped from taking any action in the premises. Under this motion the petitioners argue the equities of the case and the injustice that would be done, if this court were to hold that, after Bergeron had expended time and money upon the order of the aldermen, he should be deprived of the fruits of his labors and expenditures. But it is to be observed that the question here raised is not one of equitable adjustment. However it might be if the proceeding was to recover the money back or resist payment, estoppel could not be invoked to prevent an inquiry into the fitness of one of the city officers to perform his duties under the charter; for estoppel is available only in defense of a legal or equitable right or claim made in good faith, and can never be asserted to uphold crime, fraud, or wrong of any character. 10 R. C. L. 690, § 19. Nor does the fact that

(108 A.)

were composed in part of different persons [8-11] The last motion to dismiss, following than those who constituted the board at the the decision of the city council that the time it is alleged that they authorized the charge of negligence and bad conduct had firm to perform the work and furnish the been made out, was based upon the claim material, aid the petitioners in their claim that the findings were not sustained by the of estoppel; for, the appointment and re- evidence. This motion in some respects removal of municipal officers being a govern- sembles a motion for a directed verdict. If mental act, good government requires that there is any evidence tending to support the the appointing and removing power should findings of the city council, its weight and not be circumscribed in the exercise of dis- the sufficiency of the cause are for the city cretion, and where, from time to time, the in- council to determine, and the action therein dividuals composing that power are changing, will not be reviewed by this court. Rutter et the retiring members must hand down to al. v. Burke et al., supra. If either charge their successors that right unimpaired. was supported by the evidence, the motion R. C. L. 893, § 193. was properly overruled. We think there was evidence supporting the finding of bad conduct. Earlier in this opinion we have held that Bergeron did perform labor and furnish material under a contract with the city, in which he was interested and received pay for it out of the city treasury, and it is not claimed by the petitioners that that contract was awarded upon a bid advertised for as required by section 124 of the city charter. The contract, therefore, was in violation of that section, which reads as follows:

[7] The sixth motion to dismiss is based upon the claim that the city council as such have no power to prefer or hear the charges brought against the petitioners. The contention of the petitioners is that they cannot act in the double capacity of prosecutor and trier. But this objection is disposed of, we think, in Rutter et al. v. Burke et al., supra. There the proceedings were begun by the aldermen of the city of Burlington, who appointed a committee of three members of the board to investigate the water department and the "No city officer shall be directly or indirectly water commissioners' conduct. The com- interested in any contract with said city for mittee made the investigation, consuming an amount in excess of twenty-five dollars, or several days in taking testimony. A major- furnish any material or perform any labor, exity of the committee made a report sustain- cept in the discharge of his official duties, for ing charges against the water commissioners; which said city officer shall receive a sum in but the report was defeated by a tie vote tract shall have been awarded upon bids adexcess of twenty-five dollars, unless such conwhen brought before a meeting of the alder-vertised for by publication in two issues of at Later the mayor brought before the least two newspapers printed in said city at city council 12 written charges relating to least six days previous to the opening of such the matters covered by the report of the bids." committee appointed by the aldermen, and which had been denied by tie vote at a meeting of the aldermen, and the same was tried by the city council, and the hearing was conducted by the mayor.

It was there objected that the city council as then constituted was without jurisdiction, because part of its members had prejudged the case on a former hearing, and because of the active part taken by the mayor. But this court held that the constitution of the city council, its exclusive jurisdiction as a trier, and the diversity of duties imposed upon it, precluded the idea that impartiality can be made the test of the right of its members to sit in a hearing affecting the subordinate officers of the city government. It must be admitted that a much stronger case was there presented for holding the city council disqualified, because of the dual position of prosecutor and trier, than is here presented. Here the proceedings were begun by the city attorney, under the direction of the city council, by vote of that body, and, with the assistance of other counsel, prosecuted the case from beginning to end without the city council taking any further part in it, except to hear the evidence and pass upon the questions arising before it.

Under this section of the charter the contract was illegal and void. The municipality had no power to make it. It was ultra vires. City of Bangor v. Ridley, supra. It was bad conduct on the part of Bergeron & Son to enter into the contract and take pay from the city on account of it, being, as the members were, officers of the city, and it was bad conduct on the part of the street commissioners to approve the bills, and was in violation of the express provisions of the charter as well as of the principles of the common law and against public policy. 2 Dillon, Mun. Cor. (5th Ed.) §§ 772, 773. It is contended by the petitioners that, in the urgency of the particular case, it was impracticable and dangerous to wait for bids and the time that would be consumed in advertising for them, and because of this they ask us to construe the section of the charter as not applying to a case like the one before us. But this we could not do, without repealing the section referred to. The unfortunate condition of the case, if any exists, results from the plain and unambiguous language of the section, and the remedy is not through legislation by judicial construction, but through the legislative channels. It does not, however, clearly appear in