Cook v. Treasurer of Town of Peacham,

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| Vt. | Oct 15, 1877

The opinion of the court was delivered by

Powers, J.

This is a petition for a writ of mandamus, to be directed to the town treasurer of the town of Peacham, ordering him to pay to the relator certain orders upon him, drawn by the relator as a justice of the peace, in favor of the parties entitled, for costs that accrued in a criminal proceeding before him.

Section 5, c. 124, Gen. Sts., provides that justices of the peace shall draw orders on the treasury of the town liable to pay the costs of any prosecution tried before such justice, in favor of the *234persons entitled to the same. The relator, in the prosecution referred to, drew orders in favor of the prosecuting attorney, sheriff, witnesses, and himself, for the fees to which these parties were severally entitled. In this petition he asks to have payment ordered to be made to him for the gross amount of all these orders. Whatever legal obligation upon the town was created by drawing the orders by the relator, clearly vests in favor of the payees of the orders. The magistrate is not a trustee for the holders of the orders, and no authority can be found that warrants the issue of the writ of mandamus, to compel the payment of a claim to a party not entitled.

The relator in no proceeding can collect any fees but his own. He drew his own order ; but the drawing of the order is not conclusive upon the town; and in this proceeding we are to look into his claim far enough to see whether his taxation is legal or otherwise. It must appear that ho has a “ clear legal right ” to the writ, otherwise it will not issue. Sabine v. Rounds, ante, page 74. The relator’s order is largely made up of illegal fees, and thus his right is neither clear nor legal. He, therefore, is not entitled to a mandate compelling the payment-of his order.

It is .not necessary to consider the motion to dismiss made in the case, as it is better for the parties that the merits of the application be considered.

The petition is dismissed with costs.