Clement v. Graham

• Decision Date: 02 February 1906
• Citation: 63 A. 146,78 Vt. 290
• Court: Vermont Supreme Court
• Parties: CLEMENT v. GRAHAM, Auditor of Accounts.

63 A. 146

78 Vt. 290

CLEMENT

v. GRAHAM, Auditor of Accounts.

Supreme Court of Vermont.

Feb. 2, 1906.

Petition for mandamus by Percival W. Clement against Horace F. Graham, State Auditor of Accounts. Peremptory writ granted.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

Cowles & Moulton, for petitioner. N. W. Miles and Horace F. Graham, for defendant.

WATSON, J. This is a complaint for mandamus to the Auditor of Accounts commanding him forthwith and without delay to exhibit the vouchers on file in his office to the relator, or to his agent and attorney. The complaint sets forth that the defendant was, and still is, Auditor of Accounts of this state, and as such it was and is his duty to require all bills presented to him for allowance to be fully itemized and accompanied, as far as possible, with vouchers which shall be kept in his office and at all proper times and under reasonable regulations to exhibit the same, upon request, to any citizen and taxpayer of the state having a legitimate interest therein which an inspection would subserve; that the relator desired to examine said vouchers, and to that end employed an agent and attorney to act in his behalf, and to make copies of such portions thereof as should seem advisable. The allegations in the complaint show that the relator personally, and by his said agent and attorney, at divers times requested the defendant to allow the relator, or his said agent and attorney, to examine said vouchers at certain times named, also at any other time, upon the reasonable convenience and in the presence of the defendant or his deputy and under any other reasonable regulations, and that the defendant refused and still refuses to comply with such requests. It is further alleged in the complaint that the relator and his agent and attorney are citizens and taxpayers of this state; that the relator had and has a legitimate interest in said vouchers which an inspection will subserve, in that he verily believed and still believes that there have existed and still exist gross negligence and misconduct in the management of the moneys of the state, and that he desired and requested the defendant to allow the examination of said vouchers to the end that the relator might investigate the management of said moneys, and discover such negligence and misconduct, and take such action as he should be advised to correct the same, if found to exist, of which reason he Informed the defendant; that the relator cannot make such investigation, nor discover any negligence or misconduct, if they exist, except by an examination of said vouchers; that the relator was not and is not actuated herein by motives of idle curiosity, and on information and belief that he has no adequate legal means of redress except by writ of mandamus.

In answer, the defendant denies in positive terms that the relator or his attorney requested the examination of the vouchers for the purpose set forth in the complaint; also that the relator cannot investigate the management of the moneys of the state, nor discover any negligence or misconduct therein, if they exist, except by such an examination; and that the relator has any legitimate interest in or to the vouchers which an inspection would subserve. No other material allegations in the complaint are denied positively, but some are denied on information and belief, and as to some the defendant in terms puts the relator "to his proof" without any specific admission and without a denial in any form. The defendant sets forth in his answer that the reason why he refused the requests of the relator and his attorney to examine said vouchers was that he believes said vouchers are not public records, and that under the law he has no right to permit them to be examined in any manner other than that provided by law; also the further reasons that the defendant was busily engaged in completing his biennial report to be submitted to the Governor, and had arranged his files and vouchers so that the same might be readily examined and understood by the committee on claims of the General Assembly soon thereafter to be in session, and they thereby be enabled readily to make their report to the General Assembly, as provided in section 320, V. S.; and by submitting the vouchers to the examination of citizens and taxpayers who might desire to examine them they would become lost or so disarranged and misplaced that they would be nearly, if not wholly, valueless to the legislative committee or to the defendant, without great trouble, expense, and delay in rearranging them; and also the further reason that said vouchers and files are no part of the public records of the state which the defendant is under duty by law to keep, but are vouchers belonging to the office of the Auditor of Accounts, justifying him for his allowances and payments thereunder, and his only protection for the issuing of orders upon the state treasury.

An order was made fixing the time for taking and filing testimony on questions of fact not agreed upon by the parties, and the testimony was taken and filed in accordance therewith by both parties. Certain questions concerning the sufficiency of the complaint are raised by the defendant, and he urges that they should be determined upon the general principles of pleading.

At common law and prior to enactment of St 9 Anne, c. 20, no pleadings were allowed in mandamus beyond the return, which was taken as conclusive. If the return proved to be false, the only remedy of the relator was by action on the case for a false return. By the statute of Anne in all cases of mandamus relating to municipal corporations and their officers it was made lawful for the relator to plead to or traverse all or any of the material facts contained in the return, to which the defendant might reply, take issue, or demur; and such further proceedings are then to be had as could have been had if the relator had brought his action on the case for a false return. King v. Mayor and Aldermen of London, 3 Barn. & Ad. 255. Are the provisions of this statute a part of the common law of this state? In 1779 it was enacted "that common law, as it is generally practiced and understood, in the New England states, be, and is hereby established as the common law of this state." In Giddings v. Smith, 15 Vt. 344, in discussing this provision of the statute, it is said that "common law as practiced and understood probably meant as considered or altered by statute or by judicial constructions, and as it was adapted to our local circumstances and usages, generally adopted. It is most probable they had reference to the common law as understood and established by usage or the determination of the courts in Connecticut, as that appears to be the state to which the Legislature had particular reference in passing laws."

In construing this statute with its peculiar provisions, reference must be had to reports of judicial decisions in the several New England states as containing the most certain evidence of how the common law was then practiced and understood. In Commonwealth v. Knowlton, 2 Mass. 530, the court said: "Our ancestors, when they came into this new world, claimed the common law as their birthright and brought it with them, except such parts as were judged inapplicable to their new state and condition. The common law thus claimed was the common law of their native country as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice." See, also, Commonwealth v. Leach, 1 Mass. 59; Sackett v. Sackett, 8 Pick. 309; Boynton v. Rees, 9 Pick. 528. And such was the law in Maine, as is seen from the fact that in the act of separation from Massachusetts, it was provided that all laws then in force and not repugnant to the Constitution should remain and be in force until altered or repealed by the Legislature or should expire by their own limitations, which provision was also made a part of the organic law of that state. Wilcox v. Cheviott, 92 Me. 239, 42 Atl. 403. English statutes adopted there have been regarded as a part of their common law. Colley v. Merrill, 6 Me. 50. In State v. Rollins, 8 N. H. 550, it is said that prior to the act of April, 1777, there had been in force the common law as far as it was applicable to their institutions, the English statutes made in amendment of it before the emigration, and such of those made after as were adopted in practice. See, also, State v. Moore, 26 N. H. 448, 59 Am. Dec. 354. In Rhode Island the statute provides that those English statutes, introduced before the Declaration of Independence which have continued to be practiced under as in force, shall be deemed and taken as a part of the common law and remain in force until otherwise specially provided. Gen. Laws R. I. 1896, p. 1108, c. 297, § 3; Bishop v. Tripp, 16 R. I. 198, 14 Atl. 79. In Connecticut, it is said that the English common law, not unadapted to local circumstances, was brought thither at the time of the emigration and made their own by practical adoption, and that the same may be said of the ancient English statutes, not penal, whose corrective and equitable principles had become so interwoven with the common law as to be scarcely distinguishable from it. Fitch v. Brainerd 2 Day, 163; Card v. Grinman, 5 Conn. 164. In Strong's Case, Kirby, 345, the action was mandamus, and the court was requested to direct whether the procedure should be governed by the common law as it stood before the statute of 9 Anne or by that statute. It was held that the statute should be the rule of proceeding.

The Vermont statute of 1779 was by re-enactment to be and remain in force until the...