Stevens v. Kent

26 Vt. 503 | Vt. | 1854

The opinion of the court was delivered by

Redeield, Ch. J.

I. In regard to the necessity of having the moderator of a school district meeting who was appointed at the annual meeting the same during the whole year ; it seems to us of no importance. If it was really the object of the statute to have the moderator of such meetings hold office during the year, which seems to be the import of the ch. 20, § 25 of the Compiled Statutes, it never could have been exp>ected, that if it became desirable to hold other meetings, than the annual meeting, and the moderator was not present, that his place could not be supplied, and the meeting miist fail for this cause, and if the meeting proceeded, under the moderation of another, that the proceedings were not valid. The consideration, that provisionis made for supplying vacancies in other district offices, and not in this, shows, that the legislature did not attach any such vital importance, to the presence of the annual moderator at all meetings, else they must have felt the essential importance, of supplying any vacancy, which might occur in that office, as well as others. -

II. In regard to the vacancy in the office of prudential committee of this district, something perhaps depends upon the view we take of the legality of the tax. For if the tax was, what it is denominated by plaintiff’s counsel, and what the plaintiff himself seems to have believed it to be, a tax to raise money, for the purpose of enabling the district to commit a crime, his refusal to assess the tax was no dereliction of duty.- And a refusal to do a partic-lf ular act, in one’s official duty, in good faith, not believing it to be' a duty, should scarcely be regarded, perhaps ever, as creating a vacancy in the office. If there was a power of amotion from office, which exists in regard to certain corporate officers, in England, the case might be different. One having that power might, under circumstances, feel justified in removing an officer, rather than have those interested, compelled to resort to a writ of mandamus. But where no such power of amotion exists, and the officer simply refuses to do a particular act, even one required by his duty, it has been held, in this state, not to create a vacancy in the office. Cummings v. Clark, 15 Vt. 657.

But we think, it must be regarded, as sufficient to vacate the office, that a new district was erected, and the prudential committee of this district included within its limits. The objection, that the new district is not defined, by intelligible geographical limits is certainly not shown in the present case, unless we are to allow intendments, and presumptions, for the purpose of creating doubts, whereas the legal presumption is in favor of the proceeding, and of all proceedings, until the contrary be shown. There can be no doubt there was an attempt to define .the new district, by strict geographical limits. Most of the monuments are so specific, that there is no ground of doubt, in regard to them, and we presume the others will be readily ascertained, upon the ground, by following, front one given point to another, so as to include such lands, as are named. The fact, that certain persons are named, tends to create no necessary uncertainty. We think therefore, that the new appointment must be regarded as valid.

III. The only remaining question madej is in regard to the validity of the tax raised to build a school house, upon the site of the old state house. If this were a tax for the avowed purpose of erecting a nuisance, there could of course, be no question. But will the fact, that the location proved to be illegal, and that it was, upon indictment, adjudged a nuisance, render the tax illegal F The proceeding was in form an indictment, and for a technical offence against the criminal laws of the land. • But in fact, it was a proceeding merely, to test the right of the district to maintain their school house in that particular spot. Although the judgment, in legal terms, was prosternere nocwmentum practically, it only required the removal of the school house, a short distance, which no doubt could be effected, without detriment to the house, and at no great expense. The effect is certainly not very different, so far as the district is concerned, from what it would have been, if the title to the land had been decided, against them,upon a writ of ejectment, probably not as unfavorable, in the matter of removing the house, since in the present case there can be no question, in regard to that. Such,a disaster is liable, at any time, to overtake any school district, in regard to the title to the land, upon which they may have recently erected their school hoiise, or in regard to a town, in building a town house. And we do uot think it should have the effect, to avoid the tax, assessed for the purpose of building a house, under sueh circumstances, that the title of the site is found not to he in the district. It is true, no doubt, that if we were seeking occasion to involve a public officer, in loss, or ruin, or to embarrass the operations of a municipal corporation, by urging a degree of strictness, in the pursuit of their legal rights, which no man could accomplish, short of the power of prophecy, we might very readily adopt a course of construction, and argument, which would render this tax void. I have no doubt some such decisions may be found. But upon what rule of reciprocity, or courtesy, or justice, it was ever considered, that the judgment of courts of record, were to he held exempt from all presumptions of error, and that subordinate officers should be straightened up, to a discipline, before which no human sagacity is adequate to stand, I could never comprehend, unless it were to make amends for our own impunity, by the severity of our judgments, in regard to the conduct of other public officers. By this it is not meant, that any public officer is entitled to any thing more than reasonable intendments in his favor, the same that we apply to the proceedings of courts. This is the rule now, in all courts, not only in regard to matters of record, but as to the proceedings of all public officers, and it is one which is fairly entitled to be carried out. And upon this basis we think, so far as appears,,in the present case, the tax must be regarded as legal.

Judgment reversed, and case remanded.