WILLIAM S. McCOTTER vs. Town COUNCIL OF NEW SHOREHAM. NEWPORT-JUNE 11, 1901. PRESENT: Stiness, C. J., Tillinghast and Rogers, JJ. (1) New Trial. Accident and Mistake. Appeal from Town Council. The sending of a registered letter containing the claim of an appeal from an order of a town council and a bond, four days before the expiration of the time allowed by law, and the failure of such letter to reach the town clerk in time, is within the meaning of the words "accident, mistake, or unforeseen cause," as used in Gen. Laws cap. 251, § 2, and referred to in section 3. PETITION FOR A TRIAL. The facts are as follows: This is an appeal from an order of the town council of New Shoreham with reference to the layout of a highway in that town, entered January 2, 1899. The appellant, by his attorneys, prepared a notice of appeal, a bond in the sum of five hundred (500) dollars, with the Lawyers' Surety Company as surety, running to the town of New Shoreham, and a claim for jury trial, and forwarded the same by registered mail, postage prepaid, addressed to Edward P. Champlin, town clerk of New Shoreham, Block Island, Rhode Island, on the 7th day of February, 1899. The forty days within which an appeal could be taken expired on the 11th day of February, 1899. This registered package reached the Block Island postoffice shortly before midnight on the 11th day of February, 1899, but was not received by the town clerk until the 16th day of February, 1899. The attorneys for the appellant, to insure safe delivery, mailed said notice, claim for jury trial, and bond by registered postage, believing that the same would be forwarded to Block Island with the other mail matter on the 8th day of February, and in ignorance of the subsequently ascertained fact that registered mail was delivered at Block Island only twice each week. Said notice, claim, and bond were received by the postal officers in Providence just too late to be carried (1) by the boat sailing on the 7th day of February, and were detained until the sailing of the boat on the 11th day of February (the last day for claiming said appeal). Under ordinary conditions this boat would have reached Block Island in time to insure delivery of registered mail on the same day; but on account of unusual stress of weather, storms and otherwise, said boat was delayed, and said notice, claim, and bond did not reach the post-office at Block Island until shortly before midnight on the said 11th day of February, 1899, and were not received by said town clerk until the 16th day of February, 1899. The appellant subsequently, and within fifty days from January 2d, 1899, filed in the office of the clerk of the Common Pleas Division of the Supreme Court in Newport his reasons of appeal, as required by law, and within one year from the entry of said order or decree filed his application for a trial under the provisions of sections 2 and 3 of chapter 251 of the General Laws. Heard on petition of appellant for a trial, and trial granted. See same case reported in 21 R. I. 43, and 21 R. I. 425. PER CURIAM. The court is of opinion that the sending of a registered letter containing the claim of an appeal and a bond four days before the expiration of the time allowed by law, and the failure of such letter to reach the town clerk in time, is within the meaning of the words "accident, mistake, or unforeseen cause," as used in Gen. Laws cap. 251, $2, and referred to in section 3. McCotter v. Town Council, 21 R. I. 425. Petition for a trial granted. Edwards & Angell, for petitioner. M. J. CAVANAUGH et al. vs. THE MAYOR AND ALDERMEN OF PAWTUCKET: PROVIDENCE-JUNE 12, 1901. PRESENT: Stiness, C. J., Tillinghast and Rogers, JJ. (1) Mandamus. Public Officers. Demand and Refusal. Where the proceeding has relation to private rights or interests, previously to the making of an application to the court for a writ of mandamus to command the performance of any particular act an express and distinct demand to perform it must have been made by the prosecutor to the defendant, who must have refused to comply with such demand either in direct terms or by conduct from which a refusal will be conclusively implied. Semble, where a rule of a board of health provided that no person should remove the dead body of any animal or any diseased or putrid meat through the streets of a city, unless such person should have been duly authorized so to do by the board of health, and the board of health advertised for proposals for the exclusive privilege for a term of five years of removing dead animals and such diseased meat as might be ordered by the superintendent of health, the proper form of document called for under the advertisement would be an exclusive license and not a contract. MANDAMUS. The facts are fully stated in the opinion. Petition dismissed. ROGERS, J. This is a petition for a writ of mandamus to compel the mayor and board of aldermen of the city of Pawtucket to execute a contract with the petitioners forthwith, granting the latter the exclusive privilege, for a term of five years, of removing dead animals and such diseased and putrid meat as may be ordered by the superintendent of health from the city of Pawtucket, or forthwith to issue an order to the city clerk of said city to issue to the petitioners a license in the premises for the privilege aforesaid. The facts that appear in the petition, or from the records of the board of aldermen, in regard to which there is no dispute, are as follows, viz.: On February 6, 1901, the said board of aldermen adopted the following as rule 14 of the board of health, the board of aldermen constituting the board of health (Ord. of Pawtucket, cap. 36, § 1, p. 135), viz.:— "No person shall bury the carcass of any dead animal or any diseased or putrid meat within the limits of this city. And no person shall remove the dead body of any animal or any diseased or putrid meat through the streets of this city unless such person shall have been duly authorized so to do by this board of health. It shall be the duty of every police man or other person knowing of the presence of the dead body of any animal or of any diseased or putrid meat within the limits of this city to notify the board of health of the same as soon as may be." A subsequent rule provided that any person violating said rule shall be liable to a fine of not more than $20. At a meeting of said board of aldermen on February 13, 1901, the clerk was ordered to advertise for bids for the exclusive privilege of removing dead animals, diseased or putrid meat condemned by the superintendent of health, for a term of five years; bids to be filed with the city clerk on or before March 6th, at 8 o'clock P. M. In conformity with the foregoing vote the following advertisement was published, viz.: "CITY OF PAWTUCKET. "REMOVAL OF DEAD ANIMALS. "The board of aldermen of the city of Pawtucket invite sealed proposals for the exclusive privilege for a term of five years of removing dead animals and such diseased and putrid meat as may be ordered by the superintendent of health from the city of Pawtucket. Bids must be filed with the city clerk before 8 o'clock P. M., Wednesday, March 6th, 1901. A bond in such amount as the board of aldermen may direct will be required of the successful bidder. The board of aldermen reserves the right to reject any and all bids. "SAMUEL H. ROBERTS, At the meeting of the board of aldermen on March 6th, 1901, no quorum was present, and at a special meeting held March 7th 1901, the bids were opened and the matter was laid on the table; but at a meeting held March 20, 1901, it appearing that two bids had been made in response to said advertisement, one for $500, and the other for $1,500 made by these petitioners, it was voted that the contract be awarded to the highest bidder; a bond of $5,000 accompanied the successful bid, which was apparently satisfactory, no objection appearing to have been made thereto. On March 8th, 1901, being the day after the said bids had been opened, but before the board of aldermen had acted thereon, the petitioners, through their attorney, applied orally to the city clerk and the city treasurer and requested a license in the premises, or the privilege of signing any contract required, and then and there offered to pay for the same; but said officials declined to receive any money therefor, the city clerk stating that he did not know whether said privilege was to be shown by a license signed by him as city clerk, or by a contract signed by the proper city officers, and further, that he did not know whether the full amount of $1,500 was to be all paid at once in a single payment, or in yearly installments. On March 27th, 1901, at the next subsequent meeting of the board of aldermen to that at which it was voted to award the contract to the petitioners, the following communication was presented on behalf of the petitioners, viz.: "To the Honorable Board of Aldermen of the City of Pawtucket: "GENTLEMEN: At your last meeting this Board voted to accept the bid of William H. Place, Theodore S. Barnes, and Michael J. Cavanaugh for the privilege of removing through the streets of this city the carcasses of dead animals, &c., they being the highest bidder for the exclusive privilege under the advertisement ordered by this Board. Since the acceptance of their said bid the parties aforesaid have requested a form of license, or certificate, setting forth the |