The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1910-05-26
PETITION DISMISSED
Supreme Court Would Not
Interfere in Rutland Ii
cense Wrangle
JUDGE WATSON'S OPINION


the states Attorney of Rutland
County Refused and Petition is
Dismissed without COsts-COurt
Could Not Compel Side Judges to
Agree On Commission.
The following is the opinion of the
State Supreme Court regarding the
writ OF mandamus, relative to the
Rutland license situation, recently
closed. asked for by States Attorney
]. C. Jones. The court refused to is
sue the writ and dismisses the petit
ton without cost
STATE OF VERMONT, vs. FRANK M.
IPLUMLEY AND HORACE M.
REDFIELD
Supreme Court, May term, 1910.
Present: Rowell, C. ]. Munson, Wat
son, Haselton, and Powers, j. j.,
Watson, j.
This case was heard on the petit
ton and the answers. The material
facts alleged in the petition are, that
at its last annual meeting the City of
Rutland voted that licenses should
be granted for the sale of intoxicat-
ing LIQUOR therein; that the respond
ents, then and hitherto the assistant
Judges of the County Court in the
county of Rutland, did not within
sixteen days after the city so voted.
nor at any subsequent time, appoint
a board of license commissioners for
ra4
5.109 Of the Public Statutes. These
facts thus alleged are admitted to be
true by the several answers, but each
responednt sets forth new matter
upon which he relies as reason for
nonperformance charged. The allie
cations in the answers show that
from the time said vote was taken to
the present time the respondents
acting diligently, faithfully, and
honestly, have tried to agree nnon
the appointment of license commits
sioners in accordance with the pro.
visions of the statute, and for that
Durpose have met and consulted on
many occasions; that each has pre-
scented 10 his associate the names OF
many citizens who, he thought,
would accept the office and dis charge
the duties thereof with fairness and
fidelity, but to the appointment OF
meme Of them have the respondents,
respectively exercising their beet
illC gplent and discretion, be N able
console ntiously to agree; and that
each is ready and willing to agree
with TIE other on the appointment OF
aay three men who in his Judgment
will act fairly and honestly in the
pCtormance of the duties Of the Of
fee. II is argued that no reason ex-
lists thy the respondents SHOULD not
agree on a board to appoiut. The
Caa being presented, howe 'er, on the
pedtion and the answers, We must
cjn' iOer it accordingly.
,3y the common law of England
IN pre- eedings OF this character the
return is taken as conclusive, Glenn
en- V. Graham, IS VT 290. And un-
der our practice where the relator
NAV plead to or traverse the return
or answer, of no plea or traverse be
filed md the case is heard on the
petition and the answer, all aver
ments of fact in the answer, and all
material allegations in the petition
which stand admitted are taken as
true Clement Graham; People V
Crabb. 156 III. 1856, 40 n E. 319;
People Lindblom, 215 ILL., SO, "A n.
e. 73.
IL
cense, it is by statute made the duty
of the assistant judges of the County
Court, within a specified time,
whether this limitation of time is
mandatory we do not decide,-to ap-
point a board of license commission
ers for the town or city so voting;
but it is clear that this duty is not
merely ministerial. Its proper per-
formance involves the exercise of Of
fetal Judgment and sound discretion
in selecting for appointment men
suitable for the position; consequent
ly the duty is quasi-judicial in ma
ture, in the discharge of which
neither the exercise of that iscrc-
tion nor the decision finally to be
given can be controlled by manda-
mus. Richards Wheeler, 2 AK
369; Cox United States, Wall 29S
10 L.. ed. 579.
Neither of the respondents alone
has the power of appointment; and
neither, acting conscientiously and
on his own judgment, is able to agree
with the other on the person to be
appointed. In such circumstances
this Court will not by mandate com
pei either, contrary to his own sense
of what is right and just in the mat
ter, to adopt the judgment of the
other instead of his own, and thereby
cooperate in making appointments
which he believes to be unsuitable
and not in accordance with the faith
full discharge of his duties as con
templated by law. See United States
" Lawrence, Dali AZ, | l.. ed 5O2.
Petition dismissed without costs.