Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1920-01-08

the ground that they were not cNpporteh
by the evidence. BY majority vote the
! motion was overruled
This petition is brought 10 review that
| action of the city council. and tho cases
| stand for hearing upon To" questions
raised by the several motions above stated.
EXCEPT the first and fifth. which are not
| insisted upon in the petitioners briefs
] No claim is made that the work was
| done under contract awarded upon
J 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 tho iirm dld
( not do It under any contract.
! 1t is true that the petitioners are NOV
/ charged in express language with having
| furnished labor and materials under an
! express contract; but set of facts are
| set forth in those charges which thc pc
| titionees contend amount to an lmrll'd
contract and we quite agree with that
I contention. 4 contract may he implied as
well as expressed Porter VS.. Everts, 81
| Vt, 81. Parkhurst W. kcllnger. 6' W..
375: City of Bangor VS.. Ridley. 1ei A. go.
| The strict rules of the common law
| pleading are not required to be observed
! ct al. 50 Vt. II. If the charges fairly in
| form the officer to be removed Of the ac-
cusation upon which he is 10 be tried.
| they are sufficient. II was not necessary
to state in the charges in express Ian
guage that Bcreerou was interested in
the contract 1t was sufficient +" alleee
the facts constituting the contract This
we think was done 1t is alleged that the
| firm of 13ergerou u Son furnished the
materia and did the work, and received
! nav for the same from the city through
/ the approval of the city street commits
| sloners contrary to tho provisions OF sec
tion IA Of tn. city charter This was suf-
! ficient to appraisc Berg ron If what he
/ was charged.
| Considering the question on HerGeron's
! own testimony, the materials were fur'
nishcd and labor performed under an I'M
piled contract. lie says that the firm did
; it at the request Of John W. toffoy, su-
perintendent of the streets Of Burlington.
/ and that he VAS paid for it out Of the
| city treasury
| Here we have the request expressly
given by the street commissioner de-
partment the body % whom. by law, is
given the general management and con
troll of the work and repairs on the city
streets and sidewalks, and the work per-
formed and materials furnished upon that
request. \ fair test of this transaction
may be made by supposinG that the city
had refused to pay the bill and the COM
pany had brought suit to collect It. pon
what ground could tAr 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
I h. mot m
was properly ovcrruled
The third motion to dismiss rests upon
the ground that Bergcron was not an
officer Of tho city in performing the labor
ana in furnishing the material in ques-
ition within section I2i of the city charter,
iand that the city council had no jurisdic-
ton in the premises. I'm certain circun-
stances and for certain purposes, NUM-
cipal officers having charge of and ueIuG
required to perform certain public duties,
are held to he public officers; but this,
by no means, divest, them of thee charac-
ter of municipal officers. Their true
character is well stated in Hartford vs..
New Bedford. IL Gray. 2?7. wherein II is
said 1.-THE members of the fire depart
mont of New Bedford. when actnc in
discharge of their duties. are not ser
wants or agents in the employment Of tho
! city for whose conduct the city can be
held liable; but they are rather as officers
! of the city charged with the perfprmanc"
of a certain public duty or service, and
10 action will lie against tho city for
! their negligence or improper conduct
while acting in the discharge Of their
official duty" The motion was properly
overruled.
The fourth motion TO dismiss rests upon
- h,, No Il md
material furnished upon the order of the
city aldermen; that the city council who
preferred the charges are composed IA
part of the aldermen vino ordered the
work done and material furnished aud
that therefor tho city council are
estopped from taking any action in the
premises. Under this motion the pcti-
toners argue the equities of the case
and the injustice that wouln be done, If
this court were to mold that after Ber-
geron 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 esStopei
could not be invoked to prevent an in
quiry 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 10 uphold crime, fraud or
wrong of any character 10 r, G, l., 500
sec. 10 Nor does the fact that The city
council. who preferred the charges was
composed in part of different persons than
those who constituted the board at the
time it. is alleged that they authorized
the firm 10 perform the work and furnish
the material, aid the petitioners in their
claim Of estoppel; fol the appointment
and removal Of municipal officers, being
a governmental act, good government re-
quircs that the appointing and removing
power should not be circumscribcd i'm the
exercise of discretion, and where, from
| time to time, the individuals composing
! that power are changing, the retiring
members must hand down TO their sue
cessors that right unimpaired. 70 T.. G. L.,
1913, sec 1873.
! The sixth motion to dismiss is based
| upon the claim that the city council az
such have no power to prefer to hear the
| charges brought against the petitioners.
| The contention of the petitioners is that
| they cannot act in the double capacity
| of prosecutor and tricr but this objec-
| ton is disposed Of we think. in Rutter
| et al v Burke ct al, supra. There, the
! proceedings were begun by the alder
men of the city Of Burlington. who APP
| pointed "A committee of three members
of the board to investigate the water
| department and the water commissioners
| conduct The committee made the in