194 A. 465 | Vt. | 1937
Lead Opinion
This is a petition for a writ of mandamus to compel the auditor of accounts forthwith to issue his warrant in favor of the petitioner in compliance with No.
To this petition the defendant has demurred upon the ground that said act is unconstitutional and void, for that it was enacted for a private rather than a public purpose, and thus violates the provisions of Articles 7th and 9th of chapter
Article 7th. "That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community, and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community."
Article 9th. "* * * previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature *160 to be of more service to community than the money would be if not collected."
No question is, or can be, made but that the defendant has the right to raise the constitutional question here presented. City of Montpelier v.Gates et al.,
It is clear from the quoted portions of our Constitution that in general the power to pay gratuities to individuals is denied to the Legislature. Under Article 9th the purpose for which a tax is raised must be a public purpose. City of Burlington v. Central Vermont Railway Co.,
Ordinarily, a gift of money to an individual would be an appropriation of public funds to private uses, which could not be justified by law.Opinion of Justices,
For over one hundred years our Legislature has been enacting special acts for the relief of persons injured while in the employ of the State, including members of the militia injured while on duty. This, in effect, is a legislative construction that the Constitution authorizes such appropriations. There can be no question but that the Legislature has power to appropriate money for the relief of those injured while in the actual service of the State. No case, however, has been called to our attention where the authority of a state to make an appropriation for the relief of a public officer injured in the service of civil process, or for his widow and family when killed, has been passed upon. Consequently it is necessary to explore the nature of such employment.
Under P.L. 3403 a deputy sheriff is appointed by the sheriff; he must take an oath, and his deputation and oath must be filed for record in the office of the county clerk. By P.L. 3405 he may, and when required, shall perform any official duty which may be required of the sheriff, and returns of his acts and doings shall be signed by him as a deputy sheriff, and his official acts shall be deemed to be the acts of the sheriff. The provisions of P.L. 3389 that a sheriff "shall serve and execute lawful writs, warrants and processes directed to him, according to the precept thereof," apply to him. By P.L. 1495 he shall have the same powers and be subject to the same liabilities in the service of process as a sheriff, whether the process is directed to the sheriff or the deputy. The provisions of P.L. 1499 that "sheriffs shall receive all writs and precepts issuing from lawful authority, at any time and place within their respective precincts, unless they can show reasonable cause to the contrary, and shall *162 execute and return the same agreeably to the direction thereof," and of P.L. 1500 that "a sheriff who wilfully refuses or neglects to serve or return such writ or precept * * * shall be fined not more than one hundred dollars and pay to the party aggrieved damages sustained thereby, with costs," apply to him. By P.L. 1494 he "may serve process, either civil or criminal, anywhere within the State, returnable to any court." He is not merely a process server, he is also a peace officer. P.L. 3395.
By our statutes he is recognized as a public officer. Eastman v.Curtis,
The party at whose instance a writ or execution has issued, or his attorney, has the right to give the officer directions as to how they shall be executed, which directions, when not in conflict with the law, the officer is bound to follow. 57 C.J. 783; Tucker v. Bradley,
The process under which Gross acted as a deputy sheriff was a legal one. It followed the statutory form and was directed to any sheriff or constable in the State. It commanded him to arrest Pope by the authority of the State of Vermont. The command in the process was the command not of the plaintiff in the writ, but of the law. Gross did not attempt to arrest Pope because of the command of the plaintiff therein, but because the law commanded him. It was the order of the State of Vermont. Although the plaintiff therein had invoked the issue of the process, the officer's justification and authority was the command of the process. St. Johnsbury Lake Champlain R.R. Co. v. Hunt,
60 Vt. 588 ,15 A. 186 ,1 L.R.A. 189 ,6 A.S.R. 138 .
In some of our cases we have said that the officer is the agent of the plaintiff in the writ. Thus in Felker v. Emerson,
Every presumption is to be made in favor of the constitutionality of a statute, and it is not to be adjudged unconstitutional without clear and irrefragable evidence that it infringes the paramount law. State v.Clement National Bank,
Although Gross, in the service of the writ as a result of which he was murdered, was not in the direct service of the State, as in the other cases cited, yet he was performing a public function, which he could not refuse, and in attempting to make an arrest necessarily ran some personal risk. It is true that the fees an officer receives generally compensate him adequately *165 for his services, but in fixing these fees it is improbable that the Legislature had in mind that life or limb should be sacrificed for them. It should not be overlooked that the office of deputy sheriff demands more than ordinary intelligence, tact, courage and honesty, and that it is to the public interest that persons endowed with such attributes be induced to accept appointment to the office.
Under all the circumstances we are unable to say that the Legislature may not have rightfully considered that the State was under a moral obligation to Gross' dependents. As said in Wyoming ex rel. McPherren v.Carter, supra, quoting from Munroe v. State, supra, "When a man gives his services or his property to the state under such circumstances that no liability would be created to pay therefor, even if the state were an individual or a private corporation, the legislature may allow such a claim in good morals and fair dealings. * * * Why should there not be a like moral obligation to make some recompense to the man who, in his work for the state, by an unforeseen accident, has given his life or limb? The moral obligation may be as urgent in the one instance as the other." This reasoning is also applicable to a public officer acting by command of the law, although it happens that he is executing process for the benefit of a private individual, rather than the State.
Judgment that the prayer of the petition be granted, without costs, andthat a mandate issue directing the auditor of accounts to issue hiswarrant for the sum of three thousand dollars in favor of thepetitioner.
Dissenting Opinion
I am unable to concur in the result reached by my associates. My sympathies are with the petitioner, but, in my opinion, the law is not.
It does not appear from the act in question that the deceased was murdered while engaged in serving a body writ for a private individual, by the defendant named therein; but it does from the petition, and the case has been presented and disposed of on that assumption.
I do not question the authority of the Legislature to appropriate money for the relief of those injured while in the actual service of the State, or for the relief of their families. Such legislation is sustained on the ground that the State is thereby *166 discharging a moral obligation that rests upon it which constitutes a public purpose within the meaning of constitutional provisions similar to Article 9 of our Constitution. I deny, however, that any such obligation rests upon the State in the instant case. The deceased was not acting for the State when killed, but for a private individual, the plaintiff in the writ he was then attempting to serve. While the State had clothed the deceased with authority to act in the capacity in which he was acting when killed, for anyone who might require his services, and he was liable for a fine if he wilfully refused or neglected so to do, that did not obligate the State, morally or otherwise, to pay him for injuries he received while so acting. And it logically follows that the State was under no moral obligation to compensate the petitioner. The fact that deceased was murdered while in the discharge of his duty adds nothing to the merits of petitioner's claim from a legal standpoint. It is the fact that he was killed, and not the manner in which it was done, that furnishes the basis for this claim, if there is one. The claim would have been just as meritorious if he had been killed by a wild beast or in an automobile accident. If the State has authority to compensate the widow, or family, of an officer killed while serving civil process, it has like authority to compensate such officer, if he survives, for injuries received while so engaged. And sheriffs, their deputies and families do not constitute a favored class. The State owes them no greater obligation than it does constables, all civil process servers and their families. Constables, like sheriffs, must be sworn before entering upon the duties of their office, P.L. 3452, and may serve process, either civil or criminal, anywhere within the State, returnable to any court. P.L. 1495. They have the same powers and are subject to the same liabilities and penalties as sheriffs, P.L. 1496, and like them are penalized for wilful neglect to perform the duties imposed upon them by law. P.L. 8714. They serve the same form of process that sheriffs do, in the same manner, and encounter like risks in so doing. While in the service of civil process, both are acting under the command of the law, and in the exercise of power and authority bestowed thereby, in a certain sense, in a far greater sense they are acting under the command and in the exercise of authority conferred upon them by those who employ and pay them. That *167 this is so appears from the majority opinion, and cases cited. The command of the law in the instant case is no more imperative than that found in all writs of attachment, summons and replevin, in venires, citations, subpoenas, etc. In each and all of these the command is, "By the authority of the State of Vermont you" do thus and so. I cannot believe that the framers of our Constitution, who lived in an age when money was scarce, and obtainable only by the most exacting efforts, intended to make it possible for every sheriff and constable in the State who might be injured, in any way, while serving a subpoena in a civil case for a private individual, to reach the pocketbook of the taxpayers in this manner, through the medium of a sympathetic Legislature; and the fact that it never was attempted before, in this State or elsewhere, so far as is known, indicates pretty plainly how the lawmakers, and the people in general, regarded the matter prior to the present era of unrestricted donations.
If the act is constitutional we, of course, have no concern respecting the wisdom of it; but since I have no doubt that it is not, I would sustain the demurrer.