Charles H. Brown v. James B. Rock
| Decision Date | 05 May 1926 |
| Citation | 133 A. 245,99 Vt. 415 |
| Parties | CHARLES H. BROWN v. JAMES B. ROCK ET AL |
| Court | Vermont Supreme Court |
February Term, 1926.
APPEAL IN CHANCERY. Heard on bill, demurrer, answer, and facts found by chancellor, at June Term, 1926, Caledonia County, Willcox Chancellor. Decree for plaintiff. The defendant appealed. The opinion states the case.
Decree reversed, demurrer sustained, complaint adjudged insufficient, and cause remanded with directions that the complaint be dismissed with costs.
Searles & Graves for the defendants.
Shields & Conant for the plaintiff.
Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.
This is a suit in equity. The complaint which was sworn to June 16, 1925, alleges, in substance, that defendants Rock, Sinon, and Leavitt are selectmen, and defendant Miles is treasurer, of the town of Wheelock; that defendant Deos is agent of the selectmen; that at the March meeting, 1925, plaintiff was elected road commissioner of that town, and duly qualified as such; that on May 7, 1925 the selectmen undertook to remove him from said office on the ground that he was guilty of misconduct therein and declared such office vacant; that at a special town meeting held on June 2 following, plaintiff was reelected to that office and has since been and now is the legally elected and duly qualified road commissioner of that town; that said selectmen are interfering with him in the performance of the duties of said office by undertaking to perform such duties themselves and by their agents; that said selectmen have neglected and refused to furnish him with tools with which to carry on the work of said office, and have neglected and refused to furnish him with order books upon which to draw orders on the treasurer, and have ordered and directed the treasurer not to pay any orders drawn by him as road commissioner for work performed on the highways of said town; that said selectmen have ordered and directed said treasurer to accept and pay all orders drawn by them or their agents for work on such highways, and that said treasurer will so do unless restrained; that plaintiff has made demand upon said selectmen for necessary tools, order books, etc., and they have refused to furnish the same; that Deos, as agent of the selectmen, is working on the highways of said town and is employing help and teams to assist in such work, and is using the money of the town to pay therefor, all without authority and will continue so to do unless restrained; that unless defendants are restrained, all of the money of said town available for road work will be improperly expended, and plaintiff will be deprived of the income and emoluments of said office; and prays that the selectmen, their servants and agents, be restrained from interfering with plaintiff in the conduct of said office; that the selectmen be ordered and directed to refrain from interfering with plaintiff in obtaining such tools as the town has suitable for use on its highways, and be restrained from ordering and directing the treasurer not to honor and pay orders properly drawn by plaintiff as such road commissioner; that the treasurer be ordered and directed to refrain from refusing to honor and pay orders drawn by plaintiff as such road commissioner, and that Deos be enjoined from issuing, drawing or negotiating any orders on the treasurer for labor and material furnished in repairing the highways of said town.
The defendants filed an answer in which they incorporated a demurrer whereby they challenge the jurisdiction of the court of equity on the ground that plaintiff has a full, complete, and adequate remedy at law, either by quo warranto, mandamus or certiorari; that such court has no jurisdiction to determine political questions and controversies between different town officers, and that the complaint does not show that plaintiff is an incumbent of the office of road commissioner, and therefore entitled to equitable relief or assistance in the discharge of the duties thereof. The demurrer was overruled subject to defendants' exception, and the benefit thereof was reserved to them on final hearing.
Since the defendants now claim the benefit of this exception our first inquiry concerns the sufficiency of the complaint to meet the objections interposed to it. We think the court erred in overruling the demurrer. While the complaint does not show that some one other than the plaintiff was claiming title to the office of road commissioner, it does show that his right to hold that office and perform the duties thereof, after the June 2 election, was challenged by the defendants in every conceivable manner. The selectmen refused to furnish him with the tools and books belonging to that office, and directed the treasurer not to honor or pay orders drawn by him, and the treasurer refused to honor and pay such orders. If the plaintiff's title to the office was in dispute, his remedy was by way of quo warranto or information in the nature of quo warranto. If his title was not in dispute, but the selectmen and treasurer were simply ignoring him by refusing to turn over...
To continue reading
Request your trial