Becker v. Selectmen of Town of Bennington

• Decision Date: 23 February 1962
• Docket Number: No. 201,201
• Citation: 123 Vt. 6,178 A.2d 399
• Court: Vermont Supreme Court
• Parties: Franklin BECKER v. SELECTMEN OF the TOWN OF BENNINGTON.

Page 399

178 A.2d 399

123 Vt. 6

Franklin BECKER v. SELECTMEN OF the TOWN OF BENNINGTON.

No. 201.

Supreme Court of Vermont.

Feb. 23, 1962.

Jones, Ehrich & Dollard, Bennington (John H. Williams, II, and R. Marshall Witten, Bennington, of counsel), for plaintiff.

Norton Barber, Bennington, for defendant.

Before HULBURD, C. J., and SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This is a petition for a declaratory judgment brought pursuant to the provisions of 12 V.S.A. § 4712. The purpose of the action is to determine the legality of a consolidation of two road districts as voted at the Bennington town meeting held in March of 1961, and, also whether the plaintiff, Franklin Becker, was duly elected as a road commissioner of the town at that meeting for District No. 1.

The parties submitted the case upon an agreed stipulation of facts, pursuant to which the Bennington County Court made findings. An order was issued by the court sustaining the legality of the consolidation as voted, and, it provided that the plaintiff was not duly elected as a road commissioner for the town. The plaintiff brings this appeal from that order. The issue presented is rooted in laws enacted by the 1902 session of the General Assembly.

Special Act. No. 294, approved December 9, 1902 and relating only to the Town of Bennington, provides in part as follows:

'Section 1. The town of Bennington is hereby empowered to elect two road commissioners at its annual meeting, who shall be elected by ballot, one from each of the highway districts of the town of Bennington referred to below, * * *.

'Sec. 2. George H. Elwell, former road commissioner, and Charles L. Jewett, present road commissioner, are hereby appointed a committee to divide the roads of the town of Bennington outside of the incorporated villages, into two districts, as nearly equal as possible. If the above committee shall be unable to agree on the division of the district, they shall appoint a third member of the committee from the voters of the town, who is not a voter in an incorporated village of the town, who shall have equal powers with them in making such division. * * *

'Sec. 3. No one who is a voter in an incorporated village of the town of Bennington shall be eligible to vote for nomination or election of road commissioners under this act.'

Act No. 55, amending sections 2980 and 2981 of the Vermont Statutes, was passed at the 1902 session of the General Assembly and approved December 11, 1902. This general enabling act, among other things, provided for the election of town officers including road commissioners, and the division of a town into districts. This act, of course, was not limited to any specific town but applied to all towns in the state. This statute provided in part as follows:

'Section 1. * * * At the annual meeting towns shall choose among the inhabitants thereof the following town officers, * * * one or two road commissioners who shall be elected by ballot; * * *.'

'Sec. 2. When two road commissioners are so elected the selectmen of the town shall as soon as possible divide the town into two highway districts * * *, such division not to be changed except by vote of the town at its annual meeting.'

This general act has continued in effect without significant change. Section 1 thereof is now found in 24 V.S.A. § 711(5), and section 2 in 19 V.S.A. § 131.

The same session of the General Assembly passed Act. No. 63, approved November 21, 1902. This statute provided that voters of an incorporated village within a town could not vote in town meetings for the road commissioners of the town unless at least fifteen percent of the last highway tax of the incorporated village shall have been paid over to the town treasurer to be expended upon the highways of the town outside of the village corporation. This provision is now contained in 24 V.S.A. § 701. At all times material the town of Bennington included three separate incorporated villages.

At its annual March meeting in 1903 the town of Bennington voted to elect two road commissioners pursuant to the special act, No. 294, supra. Two road districts were then created by the committee appointed for that purpose under the act. The division of the town into two road districts continued unchanged until the annual meeting in March of 1961. Article 17 of the warning for that meeting reads:

'To determine by ballot whether the town will change the two highway districts into which the town is presently divided by combining them in one district and whether the town will vote to elect one road commissioner only. (If this article is voted yes, a special election for town road commissioner will be held.)'

Article 17 was carried by a vote of 1674 to 891. Various town officials, through the local newspapers and otherwise, explained before the annual meeting that if Article 17 was carried the vote for road commissioner would be of no effect and a special election would be held later to elect one road commissioner. This matter was also discussed and similarly explained at the 1961 March town meeting before any vote was taken.

At the annual meeting in March 1961 the plaintiff was the successful candidate for road commissioner, district No. 1. The passage of Article 17 eliminated the office to which he had been elected. Plaintiff therefore contends that the consolidation of road districts as voted was illegal and claims the right to serve as road commissioner for district No. 1.

Following the annual meeting of March 1961 a special meeting for the election of a town road commissioner was held on April 11, 1961. This meeting was duly warned and at the meeting James Cross was elected. Between the annual town meeting of the same year and the special meeting Mr. Cross had been acting as road commissioner by...