Couture v. Selectmen of Town of Berkshire

• Decision Date: 18 February 1960
• Docket Number: No. 1881,1881
• Citation: 159 A.2d 78,121 Vt. 359
• Parties: Gerard COUTURE v. SELECTMEN OF the TOWN OF BERKSHIRE.
• Court: Vermont Supreme Court

Page 78

159 A.2d 78

121 Vt. 359

Gerard COUTURE v. SELECTMEN OF the TOWN OF BERKSHIRE.

No. 1881.

Supreme Court of Vermont.

Feb. 18, 1960.

William K. Sullivan, Richford, N. Henry Press, St. Albans, for plaintiff.

Ready & Brown, St. Albans, for defendant.

Before HULBURD, C. J., HOLDEN, BARNEY and SMITH, JJ., and DIVOLL, Superior Judge.

BARNEY, Justice.

This is a dispute between the road commissioner and the selectmen of the town of Berkshire. The commissioner seeks to require the selectmen to deliver up to him for use on town roads the Austin Western power grader and the diesel Cletrac tractor with plow owned by the town. The selectmen have kept this equipment locked away from the commissioner on the grounds that he does not meet their standards as a competent operator of the machinery and further that he is not entitled, by virtue of his position, to exclusive control of the town's road equipment. Findings based on an agreed statement of fact disclose that this same road commissioner had had the use of and had operated this equipment in previous terms of office from 1951 to 1955 under the general supervision of the selectmen. There was nothing in the findings to support the selectmen's position that the commissioner was not a qualified operator. The selectmen have indicated that the commissioner could use this machinery for town road repair if he would provide an operator who met their approval. Both the selectmen and the road commissioner were elected at the 1959 March meeting of the town of Berkshire. The road commissioner filed the bond required by statute and his bond was approved by the selectmen. To carry out his duties, the commissioner has had the use of certain horsedrawn grader equipment belonging to the town.

The commissioner has come to this Court as petitioner seeking to have a writ of mandamus issue to require the selectmen to turn over to him the power grader and tractor, and to have them enjoined and restrained from interfering with his performance of his duties.

The selectmen as defendants in this action contend that mandamus does not lie in this case. It is their contention that since the conduct of town affairs generally are their responsibility, it is within their discretionary powers to withhold or deny the use of valuable equipment in situations where it might be subject to damage by improper use by unskilled operators. In particular, they say, this right is not subject to challenge in the absence of a showing that the petitioner was thereby made unable to carry out his duties as road commissioner. It is a well recognized proposition of law that ordinarily mandamus will not lie to review the performance of an official act involving the exercise of judgment or discretion. Town of Glover v. Anderson, 120 Vt. 153, 155, 156, 134 A.2d 612; Proctor v. Hufnail, 111 Vt. 365, 369, 16 A.2d 518. It usually lies for the enforcement of purely ministerial acts. Carpenter's Adm'r v. Brown, 118 Vt. 148, 152, 102 A.2d 331. To these general propositions there is an exception, however. Where there appears, in some form, an arbitrary abuse of the power vested by law in an administrative officer or board which amounts to a virtual refusal to act or to perform a duty imposed by law, mandamus may be resorted to in the absence of other adequate legal remedy. Sanborn v. Weir, 95 Vt. 1, 6, 112 A. 228; see also Ellis v. Cannon, 113 Vt. 511, 516, 37 A.2d 377. But the writ will not issue unless the right sought to be enforced is certain and clear. Town of Glover v. Anderson, supra, 120 Vt. at page 155, 134 A.2d at page 613.

In order to determine whether the writ should issue it must be ascertained whether there exists in the petitioner a clear right and whether the actions of the defendants constituted an arbitrary abuse of authority. Menut & Parks Co. v. Village of St. Johnsbury, 114 Vt. 41, 51, 39 A.2d 342, 156 A.L.R. 404; Sanborn v. Weir, supra, 95 Vt. at page 6, 112 A. at page 230.

The duties of a town road commissioner as provided by 19 V.S.A. § 101 are as follows:

'The town road commissioner shall superintend the expenditure of the town highway tax, shall have charge of keeping in repair such highways and shall be responsible to the town for damages sustained by it through his fault or neglect in the discharge of his duties. When a road commissioner has expended the money appropriated by the town for the repair of town highways and the amount thereof is not sufficient to complete the ordinary repairs of such highways, he shall notify one of the selectmen of the town of such insufficiency, and shall not be liable to the town for damages occasioned by the want of ordinary repairs of the same after giving such notice, if the selectmen do not furnish the means to complete such ordinary repairs. After the giving of such notice, the town shall not be chargeable with the expenses of the ordinary repairs of its town highways unless incurred under the direction of the selectmen.'

24 V.S.A. § 832 provides that the selectmen require the road commissioner to give a bond running to the town conditioned for the faithful performance of his duties, in amount and with sureties prescribed and approved by the selectmen.

The statutory duty of the petitioner is plain, as is his liability for failure to perform those duties. Furthermore, the statutes provide protection for the town by requiring a bond. In view of the obligations placed on him by law, he has a clear right to be permitted to carry out these duties without being hindered or handicapped by the actions of the defendants. The circumstances are similar to those in Town of Bennington v. Booth, 101 Vt. 24, 140 A. 157, 57 A.L.R. 156. The town officer in that case was the town clerk, but the language is applicable here. The road commissioner and the selectmen are all elected officers of the town. Each has certain duties to perform. Those of the road commissioner are not made subject to the approval of the selectmen. The general supervision of the affairs of the town is in the selectmen, and they are charged with seeing to it that all duties required of towns and town school district not committed to the care of any particular officer are performed. 24 V.S.A. § 872. As already appears, however, the duty of repairing town roads is expressly committed to the road commissioner. There is no authority in the selectmen to prescribe the method by which the road commissioner performs his duties, nor any power to prevent his carrying out of his official responsibilities by the imposition by them of arbitrary restrictions. Town of Bennington v. Booth, supra, 101 Vt. at page 29, 140 A. at page 159.

The defendants contend that their insistence on a qualified operator was a reasonable requirement in view of the value of the equipment, and in no way hindered or handicapped the petitioner in performing his duties. However worthy their motives, nevertheless, they were undertaking a supervision of petitioner beyond the authority of their office and have shown this Court no statutory basis for doing so. But defendants point out that the findings in this case contain nothing by way of facts to establish that the acts complained of interfered in any way with the performance of petitioner's duties. They cannot justify their own abuse of authority by resorting to what they claim is petitioner's successful performance under handicap. It would be most unjust to deny petitioner a remedy to which he was otherwise rightfully entitled on a showing that he carried out his duties satisfactorily in the face of unwarranted hindrance on the part of the defendants. The wrong is the attempted supervision of petitioner's use of the town's road repair equipment, because, in so doing, the selectmen...