Eastern Advertising, Inc. v. Cooley, 1986
| Decision Date | 07 February 1967 |
| Docket Number | No. 1986,1986 |
| Citation | 227 A.2d 294,126 Vt. 221 |
| Parties | EASTERN ADVERTISING, INC., v. Harry H. COOLEY, Secretary of State. |
| Court | Vermont Supreme Court |
Paterson, Gibson & Noble, Montpelier, for petitioner.
Louis P. Peck, Deputy Atty. Gen., Montpelier, for Secretary of State.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is a petition for a writ of mandamus to compel the petitionee as Secretary of State to issue a permit to petitioner for the erection of an outdoor advertising sign on a certain site in the Town of Milton, Vermont, pursuant to the provisions of Chapter 93 of Title 9, V.S.A. entitled Outdoor Advertising.
Section 3628 of Chapter 93 provides for the issuance of such permits by the secretary of state, 'If the size and location of each advertisement, billboard or other structure is not contrary to the provisions of this chapter * * *.' The petitioner claims that its right to erect the outdoor advertising sign in question in the designated location in Milton, Vermont, is controlled by 9 V.S.A. section 3682 of Chapter 93. This section reads in part as follows:
'(a) Except as provided in subsection (b) of this section and section 3683c of this title, outdoor advertising signs, displays, or devices shall not be erected or maintained within a distance of seven hundred and fifty feet from the nearest edge of the right-of-way and visible from the main traveled way of any highway which is part of the national system of interstate and defense highways and primary highways or of any other public highway which has been established by the state as a limited access facility.
(b) Subject to any necessary approval, or agreement with the secretary of commerce of the United States, the provisions of subsection (a) of this section shall not apply to signs, displays, or devices in zoned or unzoned commercial or industrial areas.'
Section 3683c, mentioned in the above statute, applies to signs permitted in protected areas, and has no application to the present case.
The application under consideration was returned to the petitioner with a letter of explanation from the secretary of state reading as follows:
'Lacking a definite definition of what constitutes an 'unzoned or zoned industrial or commercial area', we herewith return your check in the amount of $30.00 and two applications tendered in your letter of August 12, 1966 and deny permits for same.'
Mandamus lies in a proper case to enforce the performance of a ministerial act by a public official. Town of Glover v. Anderson, 120 Vt. 153, 155, 134 A.2d 612. If the duty is one that necessarily involves an inquiry of fact and the exercise of judgment on the case presented, it is not considered ministerial but discretionary, and the disposition of it made by the official will be binding upon the courts. Proctor v. Hufnail, 111 Vt. 365, 369, 16 A.2d 518. A decision of a public officer resting solely on the construction of a statute does not involve such an exercise of judgment as will bar mandamus. Rutland Cable T. V. Inc. v. City of Rutland, 121 Vt. 399, 403, 159 A.2d 83. See Town of Glover v. Anderson, supra, 120 Vt. at page...
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...is to require a public officer to perform a simple and definite ministerial duty imposed by law. Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 222, 227 A.2d 294, 295 (1967); Rutland Cable T.V., Inc. v. City of Rutland, 121 Vt. 399, 403, 159 A.2d 83, 85 (1960). Thus, mandamus ordinarily ......
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