Bates v. Keith
| Decision Date | 29 March 1894 |
| Citation | 28 A. 865,66 Vt. 163 |
| Parties | ALLEN BATES v. LEWIS KEITH |
| Court | Vermont Supreme Court |
JANUARY TERM, 1894
Petition dismissed with costs.
Martin & Slack for the petitioner.
This is a petition for a writ of mandamus. The petitioner was, on the 5th day of September, 1893, elected to fill a vacancy in the office of treasurer of school district No.13, in Barre, caused by the resignation of the petitionee and, on the 18th day of October, 1893 demanded of the petitionee the money, books and papers in his hands belonging to the district. The money was not delivered because the district was owing the petitionee several hundred dollars in excess of the money in his hands, for which he held a district order, drawn and delivered to him by the prudential committee of the district, and because the town of Barre claimed the money in his hands and had brought a suit against the district and summoned him as trustee. The books were memorandum books furnished by the petitionee, on which he had entered moneys received and paid out by him as treasurer. The papers were orders drawn on and paid by him as treasurer; these he did not deliver, because he considered them necessary for his protection in the trustee suit and settlement of his account as treasurer.
After this demand the district auditors notified him to appear before them and settle his account as treasurer, and he thereupon sent them a statement of his account, and delivered to the chairman of the board the orders paid by him. He is ready and willing to deliver the books and papers, if his account is settled. The petitioner was one of the auditors and attended the meeting of the board for the purpose of settling the petitionee's account. The petitionee has not been informed by the petitioner or any other member of the board of auditors as to whether the account rendered was satisfactory. The petitioner did not thereafter call for the money, books or papers, and, in a few days after the meeting brought this petition.
Mandamus is not a writ of right, but a prerogative writ, which issues only in a proper case, clearly proved to the court. It will not be granted unless the right to have the thing done is clearly established; nor will it be granted unless there is occasion or necessity for its issue. Sabine v. Rounds, 50 Vt. 74; Cook v. Treasurer of Peacham, 50 Vt. 231; Free Press Association v Nichols, 45 Vt. 7. The burden was on the...
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