Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1885-11-06
THE SUPREME COURT.
A Case Argued Involving the Constitution
ality of IA Legislative Act.


The case in re VIM. II. Smell from Addi-
son county, the argument of which was
closed at 10 o'clock Tuesday morning, is
important in that it involves the consti-
tutionality of an act of the Legislature
passed at the session of 1854, entitled can
act authorizing the appointment of special
prosecutors of criminal offences, No. III
of the acts of Isl. The act is in substance
this On petition to the governor of TWEEN
ty or more legal Voters OF Il town, setting
forth that the criminal laws of the State
are not properly enforced in such town, it
shall ne the duty of the governor to APP
point one or more Of the legal voters of
said town as Especial prosecutors" of
criminal offences within such town. The
act gives to such special prosecutor the
same powers and entities him to the same
fees as town grand jurors.
Under this act n petition, signed by the
requisite number Of citizens of Middle.
bury, was presented to the governor. Act
ing upon said petition the governor APP
pointed \. p. Upper of Middlebury
as special prosecutor" under such act.
The prosecutor" made complaint to one
Maynard, justice of the peace, against the
relator i'll this case, VIM. II. Smell, for
keeping billiard table contrary to sec
ton 40GS of the revised laws. The case
was heard before the justice and Smell
was bound up for appearance at County
Court. Failing to obtain bail he was
/ lodged in the Middlebury jail.
| The relator, though his attorneys, Stew
art and WildS, brought his petition to his
/ Honor w. q. Neazey, praying for writ
of habeas corpus. The writ was granted
and relator brought before Judge Neazey
at Rutland Oct. 10, when the cause was
continued to Oct. %, at the court house
in Montpelier When the case came on
for hearing at Montpelier, it was trans
ferred to the general term of Supreme
Court, and was here argued as above
| stated.
The counsel for relator claimed that the
act above referred to was unconstitutional
because the duties cast by that act on the
special prosecutor were an infringement
upon the rights and duties of the States
attorney; that the constitution, provd-
ing for the election of Il States attorney,
| intended that the duties of such State S
attorney should be prescribed by the Leg
islature of the State that the duties 50 by
statute cast upon the States attorney are
exclusively within his province; that it is
not in the power of the governor, by ap-
pointment, to create an officer to perform
the duties of another who the constitution
says shall be elected by the freemen.'
The counsel for the prosecutor insisted
that the Act was constitutional and relied
upon the power of appointment given tC
the governor by Sec II Of the constitu
ton.
The case was ably argued by C. NJ
Wilds, Esq, and Hon. John w. Stewart
for the relator, and by the special Prose
cutor" y. p. Upper and Edward Dane
for the prosecutor
Another case was heard Tuesday The
case of l.. a. Lyman, administrator, VS.. The
Central Vermont Railroad company. The
suit was brought to recover damage:
to plaintiff from the death of her husband
ut the fault, as it was alleged of the de
PENDANT company. The case comes here
on demurrer taken by the plaintiff to a
special plea in bar, pleaded by the defend
ant. The plea alleges that the defend
ant at the time the suit was brought wa:
receiver and manager of the Vernon
Central and Canada railroads and as such
receiver operated the Addison railroad
where the injury was alleged to have oc
; Cured.
The question is whether the Contra
Vermont Railroad company can b,
held by that name, for injury which cam,
) to plaintiffs intestate while the Contra
, Vermont Railroad company was operating
the Addison railroad as receiver.
This case was argued by f. &. Swining
ton and Col. A. +. Walker for plaintiff an,
by stephen Royce and Guy G.. Noble fol
defendant.
Ex-Judge John Prout was in cour
Tuesday.