Anna Gross v. Benjamin Gates, Auditor of Accounts

• Decision Date: 05 October 1937
• Citation: 194 A. 465,109 Vt. 156
• Parties: ANNA GROSS v. BENJAMIN GATES, AUDITOR OF ACCOUNTS
• Court: Vermont Supreme Court

194 A. 465

109 Vt. 156

ANNA GROSS v. BENJAMIN GATES, AUDITOR OF ACCOUNTS

Supreme Court of Vermont

October 5, 1937

May Term, 1937.

Mandamus---Raising Constitutional Issue---Payment of Gratuities by Legislature---Public Purpose of Tax---Limitation of Right to Appropriate---Gift of Money by Appropriation---Appropriation in Discharge of Moral Obligation---Private Person Receiving Benefit---Public Advantage Therein---Legislative Construction of Constitution---Relief of Persons Injured in Service of State---Deputy Sheriff a Peace Officer---A Public Officer---Duties Performed In Execution of Law---Directions to Officer as to Execution of Writ---Effect of Special Instructions---Duty of Officer in Absence of Special Instructions---Liability of Party for Wrongs of Officer---Command in Capias---Officer to Be Impartial---Officer as Agent of Law---Officer Conducting Execution Sale---Constitutionality of Statutes---Status of Deputy Sheriff Serving Civil Writ---Fees of Officers---Allowance of Compensation by State to Individual---No. 246, Acts of 1937, Compensation of Dependents of Murdered Deputy Sheriff, Held Constitutional.

1. On petition for mandamus to compel auditor of accounts to issue his warrant in payment of claim as authorized by special act of Legislature, defendant has right to raise question as to constitutionality of act involved.

2. Under Articles 7th and 9th of Chapter I of Constitution of Vermont, power to pay gratuities to individuals is, in general, denied to Legislature.

3. Under Article 9th of the Constitution providing that purpose for which tax is raised ought to be of more service to community than money would be if not collected, such purpose must be a public one.

4. Right of Legislature to appropriate public funds is no greater than its right to tax.

5. Ordinarily, gift of money to individual would be appropriation of public funds to private uses, which could not be justified by law.

6. State may make appropriation in discharge of moral obligation resting on it, and such appropriation must be regarded as being for public purpose and within constitutional powers of Legislature.

7. That private person may receive benefit of appropriation made in discharge of moral obligation of state does not constitute act of appropriation a private one.

8. Where public moneys are appropriated in discharge of moral obligation of state, public advantage is in manifestation that sovereign power is just.

9. That Legislature for over one hundred years has been enacting special acts for relief of persons injured while in employ of State is, in effect, legislative construction that Constitution authorizes such appropriations.

10. Legislature has power to appropriate money for relief of those injured while in actual service of State.

11. Deputy sheriff is not merely process server, but also peace officer.

12. Under statutes deputy sheriff is recognized as public officer.

13. A portion of sovereign authority of State is entrusted to deputy sheriff, and his duties are performed in execution of law, in exercise of power and authority bestowed by law.

14. Party at whose instance writ or execution has issued, or his attorney, has right to give officer directions as to how it shall be executed, and officer is bound to follow such directions when not in conflict with law, but not to serve writ in any other manner than according to such directions.

15. When party assumes to give special instructions to officer in regard to execution of process in his hands, different from his legal duty, officer ceases to be public officer, as to business so entrusted to him, and becomes private agent.

16. When no special instructions as to service of writ or execution are given, it is duty of officer to serve writ according to its precept.

17. When party does not direct or control course of officer to whom writ or execution is given, nor ratify his acts, he is not liable for any wrong committed by officer.

18. Command in capias writ was command not of plaintiff but of law, and officer's justification and authority for attempt to arrest defendant named therein was the command of the process.

19. As officer to whom writ or execution is given must be disinterested and impartial, he lacks usual characteristic of private agent, which implies interest favorable to one party and adverse to the other.

20. Such officer is agent of the law, and to extent that he is also agent of plaintiff it is not of his own appointment.

21. Officer conducting execution sale, in addition to his character as minister of the law, is regarded as a sort of trustee and agent both for creditor and debtor.

22. Every presumption is to be made in favor of constitutionality of a statute, and it is not to be adjudged unconstitutional without clear and irrefragable evidence that it infringes paramount law.

23. Deputy sheriff, murdered while engaged in service of capias writ in civil action, was not in direct service of State, but was performing public function which he could not refuse.

24. Fees received by officer for service of civil process generally compensate him adequately for his services, but in fixing these fees it is improbable that Legislature had in mind that life or limb should be sacrificed for them.

25. When man gives services or property to State, or through accident, in his work for State, gives life or limb, under such circumstances that no liability would be created to pay or make recompense therefor, even if State were individual or private corporation, Legislature may allow such claim in good morals and fair dealings.

26. No 246, Acts of 1937, authorizing payment of named sum to widow of deputy sheriff, murdered while engaged in serving capias writ in civil case by defendant named in writ, is constitutional, since Legislature may have rightfully considered that State was under moral obligation to such officer's dependents.

PETITION for mandamus to Supreme Court, Washington County, to compel auditor of accounts to comply with No. 246, Acts of 1937, directing him to issue warrant in favor of widow of deputy sheriff murdered while engaged in serving capias writ in civil suit. The defendant demurred. Heard on pleadings at the May Term, 1937. The opinion states the facts.

Judgment that the prayer of the petition be granted, without costs, and that a mandate issue directing the auditor of accounts to issue his warrant for the sum of three thousand dollars in favor of the petitioner.

Wilson, Carver, Davis & Keyser for the petitioner.

Lawrence C. Jones, Attorney General, for the petitionee.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SHERBURNE

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. 246 of the Acts of 1937, which provides as follows: "The auditor of accounts is hereby directed to issue his warrant for the sum of three thousand dollars in favor of Anna Gross of Richford, widow of Otis J. Gross, late of said Richford, who was murdered September 24, 1934, while acting in the capacity of a deputy sheriff, by a person then under arrest and in his custody. Said money is to be paid to compensate said Anna Gross for the loss of her husband's earnings, burial expenses, and to assist in her support and the support of a minor child." The petition sets forth the facts in substantial agreement with those recited in the act, and in addition shows that said Otis J. Gross was then and long had been a deputy sheriff of outstanding and conspicuous ability, trustworthiness and character; that on said date he received a civil writ issued out of the Franklin municipal court, which contained a capias directing and commanding him to apprehend the body of one Michael Pope, the defendant in said writ, and him safely keep so as to have him in court to answer to the complaint of the plaintiff therein; and that while lawfully engaged in making service of said writ and attempting to apprehend the body of the said Pope, he was shot to death by him.

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 I of the Vermont Constitution, which, so far as here material, respectively provide:

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 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., 106 Vt. 116, 125, 170 A. 473.

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., 82 Vt. 5, 10, 71 A. 826. And the right of the Legislature to appropriate the public funds is no greater than its right to tax. Cooley on Taxation, 4th ed., sec. 177; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A. (N.S.) 83, Ann. Cas. 1914B, 1278; Hager v. Kentucky Children's Home Soc., 119 Ky. 235, 83 S.W. 605, 67 L.R.A. 815.

Ordinarily, a gift of money to an...