Batchelder v. Nourse

35 Vt. 642 | Vt. | 1863

Barrett, J.

The pleadings in this case present for decision the single question, whether a justice of the peace is legally dis qualified to take jurisdiction of, and try, a case for the reason that he had previously, as one of a board of arbitrators between the same parties, and in reference to the subject matter of the suit, upon a hearing of such matter as sueh arbitrator, formed an opinion and expressed the same to his associate arbitrator. It is purely a question of legal disqualification. Aside from the alleged cause of disqualification, it is conceded that he had lawful jurisdiction and right to try the ease.

To solve this question, the statute, endowing the justice with his official character, and defining his rights, duties and disqualifications, is to be resorted to ; and this as well to determine what is the policy of the law, as to ascertain what is specifically conferred and prohibited.

On looking into the statute, it is found there to be specifically provided what shall disqualify a justice from exercising, in the given case, the functions appertaiuing to that office.

Upon familiar principles of construction, other causes of disqualification in this respect are to be regarded as excluded,— and only those enumerated are to be held as effectual to disrobe him of his official capability in the particular case.

The cause here assigned is outside of the terms, and equally must be regarded as outside of the policy, of the statute.

While we should find occasion to commend the good taste and good sense which would cause a justice, in such a case as this, to decline to officiate, yet, upon the law as it exists, we are unable to hold that he is not lawfully entitled to ply his office, if neither taste nor sense is operative and effectual to restrain him from such an impropriety.

• Without discussing the subject more largely at this time, "wo ■feel compelled to hold the surrejoinder to be sufficient, and therefore the judgment of the county court is reversed, with costs, and respondant ouster awarded.

The case is remanded to the county court.