Gold v. Parker, 1054.

• Decision Date: 01 May 1945
• Docket Number: No. 1054.,1054.
• Citation: 42 A.2d 416
• Parties: GOLD et al. v. PARKER, Attorney General, dt al.
• Court: Vermont Supreme Court

42 A.2d 416

GOLD et al.

v.PARKER, Attorney General, dt al.

No. 1054.

Supreme Court of Vermont.

May 1, 1945.

Original petition by Anna Gould and others for a writ of prohibition to restrain Alban J. Parker, Attorney General, and Edward G. McClallen, Jr., State's Attorney, from preparing and presenting any evidence before a special Grand Jury called to consider the charge of embezzlement against a third party and from interfering with the proceedings of that body, wherein the petitionees filed a motion to dismiss.

Petition dismissed.

Lindley S. Squires, of Rutland, and Frank Barber, of Brattleboro, for plaintiff.

Petitionees appeared pro se.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

MOULTON, Chief Justice.

This is a petition for a writ of prohibition, brought to this court by Anna Gould and six others, all citizens of Rutland County, whereby it is sought to restrain Alban J. Parker, Attorney General of this State, and Edward G. McClallen, Jr., State's Attorney for Rutland County, from preparing and presenting any evidence before a special grand jury called to consider a charge of embezzlement against John G. Keale, of Jersey City, New Jersey; from interfering in any way with the proceedings of that body; and from preparing any indictments to be considered by it. It is alleged that the petitionees, Parker and McClallen, are disqualified and unsuitable to conduct the proceedings. The petitionees have filed a motion to dismiss the petition, and the question raised thereby is whether a writ of prohibition will lie against them.

The events leading up to the bringing of the petition, so far as they may be material for an understanding of the case, are these:-Keale is a co-administrator of the estate of Bridget Wade Coleman, late of Wallingford, in Rutland County, who died on February 20, 1943, at the age of 78, and for some time before her death he had managed her financial affairs, under a power of attorney executed by her. The petitioner Anna Gould filed a claim against her estate, and, through her attorney, made a complaint to the petitionees that Keale, during Miss Coleman's lifetime had misappropriated funds belonging to her, to the amount of approximately $6200. Acting upon this information a warrant was issued and Keale was arrested, but upon a preliminary hearing before the Rutland City Court he was discharged for lack of sufficient evidence. A further investigation was made, and the petitionees reached the conclusion that the case against him was not strong enough to warrant a conviction. It appeared that his amended inventory of the estate showed sums of money on deposit in various banks in the City of Rutland held by him as assets of the estate which equaled or exceeded the amount of the alleged misappropriation. The petitioners, however, believing that the money had been replaced in the estate with an understanding between Keale and the petitionees that if restitution should be made no prosecution would be instituted, applied to the County Court to call a special grand jury to examine the charge of embezzlement, and the application was granted. The Attorney General communicated with the Governor of the State, stating that in view of his, and the State Attorney's connection with the matter, he felt that they were disqualified to proceed with it, and asked for the appointment of special counsel under the provisions of P.L. 382. The Governor was not inclined to grant the request, and the petitionees agreed and now intend to present the case to the grand jury. The petitioners expressly disclaim any imputation of bad faith on the part of either of the petitionees, but they allege that if the case should be conducted by them the result will be either a failure to find an indictment, or, if found, that it will be subject to a motion to quash because of their disqualification.

Prohibition is a prerogative writ and has been known to the common law at least since the reign of Henry II (1154-1189). As pointed out in Bullard v. Thorp, 66 Vt. 599, 600, 30 A. 36, 25 L.R.A. 605, 44 Am.St.Rep. 867, forms are given in Glanville (circa 1189). Although the process originated in the conflict of jurisdiction between the royal courts and those of the church (see Pollock and Maitland, History of English Law, 2nd Ed. Vol. 1, p. 129, Vol. 2, p. 199) the forms in Glanville are of writs directed to both lay and ecclesiastical tribunals. Beames' Glanville, Book 2, Chap. 8, and Book 4, Chap. 13, pp. 54, 96. Prohibition is directed against unwarranted assumptions of jurisdiction or excesses of it. Petition of United States, 263 U.S. 389, 393, 44 S.Ct. 130, 131, 68 L.Ed. 351. It is ‘an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal bunal properly and technically denominated as such, or to an inferior ministerial tribunal possessing incidental judicial powers and known as a quasi judicial tribunal, or even in extreme cases to a purely ministerial body to cease abusing or usurping judicial functions.’ Norton v. Emery, 108 Me. 472, 476, 81 A. 671, 672. See also, Leonard v. Willcox, 101 Vt. 195, 203, 142 A. 762. P.L. 1338 provides that the Supreme Court of this State shall have jurisdiction to issue writs of prohibition ‘that may be necessary to the furtherance of justice and the regular execution of the laws.’

At common law, therefore, the function of the writ is to restrain the excess or unlawful assumption of judicial power. Home Ins. Co. v. Flint, 13 Minn. 244, 246. As applicable here, the phrase ‘judicial power’ implies the construction of laws and the adjudication of legal rights. People ex rel. v. Apfelbaum, 251 Ill. 18, 95 N.E. 995, 997. It is ‘the authority vested in the judges.’ 1 Bouv. Law Dict., Rawles Third Revision, p. 1740.

Although the Attorney General and the State's Attorneys are often termed ‘judicial officers' they do not possess the authority to adjudicate legal rights. Their duties, as far as criminal prosecutions are concerned, are to prepare and present the case on behalf of the State to the forum having jurisdiction to decide the issue. P.L. 411 provides that: ‘The attorney general shall have the general supervision of criminal prosecutions, shall consult with and advise the state's attorneys relating to the duties of their office, and he shall assist them by attending the grand jury in the examination of any cause or in the preparation of indictments...