Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1898-08-18
INJUNCTION WILL STAND.
JUDGE ROWELL DENIES THE MOTION
TO DISSOLVE.
l.. j. Smith viii Continue as chief of Pc
lice Until tho Question is Passed Upon
by the Supreme Court-Is De
Juro and De Facto Chief.

Judge Rowell has handed down his de-
cision on the motion to dissolve the in
junction issued against Patrick Cosgrove.
The hearing was upon the bill and answer,
both of which appeared at length in these
columns.
The bill set up that Chief Smith was APP
pointed March 1G, by ex-Mayor Peck. to
hold his office, under and In accordance
with the provisions of the city charter,
that he qualified and entered upon the dis
charge of his duties, and so continued, and
was In possession of the office and dis
charging It's functions, when he made APP
plicatlon for an injunction not interfered
with in any way, except by the pretended
appointment of Mr.. Cosgrove, by Mayor
Sutton, and his attempt to exercise the
functions of the offce of chief of police.
The bill also stated that Smith had prayed
out writ of quo warranto against Cos
grove, returnable before the october term
of the Supreme Court.
The answer neither affirmed nor denied
the appointment of Chief Smith, by ex-
Mayor Peck, nor of his entering upon
the discharge OF the duties of the office.
but set up the subsequent appointment OF
MIR. Cosgrove. as chief of police. and al
legged that he had taken possession of the
office and discharged all the duties, to the
exclusion of everybody, including Loomis
j. Smith, from April a. down to the Atm
of July the day the injunction was served.
n, II. =. Il,
claimed that the defendant, not affirming
OF denying the appointment OF Mr.. Smith.
and of his entering upon the discharge of
his duties, was, for the purpose of this
motion, an admission by the defendant,
that Smith was legally appointed ny OK
Mayor Peck for the term of three years
provided by tho city charter, and leCally
entered upon the discharge OF the duties
of the office. and was in effect. dc jurc
chief of police, and that Mr.. Cosgrove's
attempt to take possession of the Office,
by force or otherwise and to discharge its
duties made him an intruder without even
color or right, as against Mr. Smith who
Is not only de jure chief, by the admission
of the defendant, in his answer, but de
facto chief as we'll
Defendants counsel Messrs. Bullard.
Dillingham;, Huse and Rowland claimed
that the orator, by admitting that he had
prayed out writ of quo warrnnto against
Mr.. Cosgr1ve admitted that Mr.. Cosgrovc
was in possession Of the office de fncto
and therefore. the bill itself did not make
out prima facie case They also claimed
that the defendant having sworn in his
answer. that he assumed the duties of tho
Office on April %. and discharged all the
duties of that office from that date down
to July 4. to the exclusion of everybody.
including the exclusion OF LOOMS j. Smith
was denial of all the equities Of the I'LL.
and therefore the injunction should be
dissolved.
The court decides that the bill was prom
erly drawn and made out n prlma facic
case for injunction to issue thereon and
that the statement of the orator that
he had prayed out writ of quo war
ranto against the defendant. demanding
OF him by what right or authority he
claimed to exercise the functions of the
office of chief of police" was not an adj
mission that the defendant was In pos
session of the office,
The court also decides that the defend.
ant neither affirming nor denying the L.
gal appointment of Mr.. Smith as alleged
In the bill or the allegation that he was
de-jure chief of police was, for the pur-
poses of this motion. an admission that
Mr.. Smith was so legally appointed and
legally entered upon the discharge of his
duties. and was de-iure chief of police.
The court also decides that smith be-
ing, so far as the bill and answer shows,
de-jure chief of police. was also holding
over at least as de-facto chief of police.
and continued to exercise the functions
of the Office, and that the defendant was
an intruder. and therefore failed to make
out his case.
Motion to dissolve the injunction was
denied and the injunction is continued
until further order,