Bates v. Keith, 66 Vt. 163

Bates v. Keith

66 Vt. 163 | Vt. | 1894

START, J.

This is a petition for a writ of mandamus. The petitioner was, on the 5th day of September, 1893, *166elected to fill a vacancy in the office of treasurer of school district No. 13, in Barre, caused by the resignation of the petitionee and, on the 18th day of October, 1893, demanded of the petionee the money, books and papers in his hands belonging to the district. The money was not delivered, because the district was owing the petitionee several hundred dollars in excess of the money in his hands, for which he held a district order, drawn and delivered to him by the prudential committee of the district, and because the town of Barre claimed the money in his hands and had brought a suit against the district and summoned-him as trustee. The books were memorandum books furnished by the petitionee, on which be had entered moneys received and paid out by him as treasurer. The papers were orders drawn on and paid by him as- treasurer; these he did not deliver, because he considered them necessary for his protection in the trustee suit and settlement of his account as treasurer.

After this demand the district auditors notified him to appear before them and settle his account as treasurer, and he thereupon sent them a statement of his account, and delivered to the chairman of the board the orders paid by him. He is ready and willing to deliver the books and papers, if his account is settled. The petitioner was one of the auditors and attended the meeting of the board for the purpose of settling the petitionee’s account. The petitionee has not been informed by the petitioner or any other member of the board of auditors as to whether the account rendered was satisfactory. The petitioner did not thereafter call for the money, books or papers, and, in a few days after the meeting, brought this petition.

Mandamus is not a writ of right, but a prerogative writ, which issues only in a proper case, clearly proved to the court. It will not be granted unless the right to have the thing done is clearly established; nor will it be granted unless there is occasion or necessity for its issue. Sabin v. *167Rounds, 50 Vt. 74; Cook v. Treasurer of Peacham, 50 Vt. 231; Free Press Association v. Nichols, 45 Vt. 7. The burden was on the petitioner to show a case authorizing the issuing of the writ and, in our opinion, such a case has not been made out.

It was the petitionee’s duty to settle his account with the auditors. No. 9, sec. 81, of the Acts of 1888; R. L., s. 2718. For this purpose he was entitled to the books and papers for a reasonable time, and the petitioner seems to have understood that such was his right, and to have acquiesced in his keeping them until a settlement could be had. There was no occasion for haste. The district was abolished, except for the purpose of settling its pecuniary affairs. It is clear that the books and papers were of secondary consideration, and that the real controversy was about the money ; and if this had been delivered to the petitioner there would have been no trouble about the books and papers. The petitionee is ready and willing to deliver them if his account has been settled. There has been no unreasonable delay on his part in settling it. He has rendered his account and delivered the orders to the board, of which the petitioner is a member, and the petitioner has not informed him as to whether the account rendered is satisfactory. From these facts we think that, so far as the books and papers are concerned, there was no occasion or necessity for bringing a petition for a writ of mandamus. In respect to the money, we hold that, in this proceeding, we cannot decide the questions about which the town and district are at issue, nor can we say that the petitionee is or is not chargeable as trustee in the suit in favor of the town. These questions must be determined in that suit and, until determined or until the petitionee is discharged from liability in that suit, he has a lawful right to hold the money in question as against the petitioner.

Petition dismissed with costs.