| Vt. | Jul 1, 1893
The petitionee moved to dismiss, for that, among other things, the selectmen had not at. the time of the bringing of the petition neglected and refused to lay out and cause to be surveyed a highway, as therein alleged. Both
Another ground for dismissal set up in the motion was, that within five years from the time this petition was brought two other petitions had been brought, asking for the laying of a highway over substantially the same location, and that commissioners had been appointed thereon, whose reports in each case, adverse to the laying of the highway, had been accepted by the court. Both pai'ties produced witnesses on this question also; but the court, failing to agree, preter-mitted it, like the other, and proceeded to adjudge as before stated. This part of the motion is based upon No. 18 of the Acts of 1890, which amends R. L. 2,945, by adding thereto that it shall be a sufficient cause for the county court in its discretion, to deny the appointment of commissioners and dismiss the petition when, within the time aforesaid, two prior petitions had been brought for the purpose and disposed of in the manner aforesaid. This act took effect on November 17, 1890. The'petition in this case was brought on November 20, 1890, and the petition to the selectmen was preferred on November 8, 1890. On November 26, 1890, the legislature declared that no act of the General Assembly shall affect any suit begun or pending at the time of its passage, with certain exceptions not necessary to be stated. Acts of 1890, No. 31. The question, therefore, arises, whether the statute pleaded in the motion can affect this case, seeing that the petition to the selectmen was brought
The rule adopted by the Supreme Court of the United States in respect of the removal of suits from the State courts to the Federal courts is, that a proceeding not in a court of justice, but carried on by executive officers in the exercise of their proper functions, as in the valuation of property for the just distribution of taxes or assessments, is purely administrative in its character, and cannot, in any just sense, be called a suit; and that an appeal in such a case to a board of assessors or commissioners having no jurisdictional powers, and authorized to determine only questions of quantity, proportion and value, is not a suit; but that such an appeal becomes a suit if made to a court or tribunal having power to determine questions of law and fact, either-with or without a jury, and there are parties litigant to contest the case on the one side and the other. Upshur County v. Rich, 135 U.S. 467" court="SCOTUS" date_filed="1890-04-14" href="https://app.midpage.ai/document/upshur-county-v-rich-92793?utm_source=webapp" opinion_id="92793">135 U. S. 467, 477. In Calderwood v. Calderwood’s Estate, 38 Vt. 171" court="Vt." date_filed="1865-08-15" href="https://app.midpage.ai/document/calderwood-v-estate-of-calderwood-6577993?utm_source=webapp" opinion_id="6577993">38 Vt. 171, it was held that a proceeding before commissioners appointed by the probate court to receive, examine, and adjust claims and demands against the estate, was a suit within the meaning of a statute declaring that a prior statute relating to the" competency of witnesses should not affect a suit brought or pending on the day it went into effect.
Now, although a board of selectmen cannot properly be called a court when acting upon any matter, and may not possess so many attributes of a court as do commissioners on the estates of deceased persons, who are officers of the court that appoints them, and whose proceedings are really the proceedings of that court, much as the proceedings before auditors, referees, and masters are proceedings before the court appointing them, yet, in laying out, altering and discontinuing highways, the functions of selectmen are more than administrative ; they are largely judicial, and they pro
Judgment reversed, with costs to the -petitionee in this court, and cause remanded.