In re Snell

• Decision Date: 27 November 1885
• Citation: 1 A. 566,58 Vt. 207
• Parties: In re WILLIAM H. SNELL
• Court: Vermont Supreme Court

1 A. 566

58 Vt. 207

In re WILLIAM H. SNELL

Supreme Court of Vermont, Montpelier

November 27, 1885

Habeas corpus. The petition was brought before VEAZEY, J., and was continued and heard at the General Term, 1885. The petitioner set forth, that he was imprisoned in the county jail by virtue of a mittimus issued by a justice of the peace; and that he had been complained against by a special prosecutor. The original complaint and mittimus were also set out, by which it appeared that the relator was the owner of billiard tables in a saloon situate in the village of Middlebury; that the selectmen of the town of Middlebury had forbidden him to use the said billiard tables, and had lodged a certificate of the notice in the town clerk's office, etc., in accordance with the statute; that the relator used the said billiard tables thirty-two days after he had been so forbidden by the selectmen; that the relator was brought before a justice of the peace, and was ordered by him to find sufficient sureties in the sum of $ 400 for his appearance before the County Court, that, having neglected to furnish the sureties, he was committed to jail for his appearance at the said court.

Relater discharged.

Stewart & Wilds and Eldridge & Slade, for the relator.

The Act of 1884 violates that article of the Constitution which requires that "State's attorneys shall be elected by the freemen." It is an attempt to usurp the powers and duties of State's attorneys. The legislature cannot provide for the choice of officers a different mode from that prescribed by the Constitution. Cooley Con. Lim. 78; People v. Raymond, 37 N.Y. 428; Devoy v. New York, 39 Barb. 169; S. C. 22 How. Pr. 226; People v Blake, 49 Barb. 9; People v. Albertson, 55 N.Y 50; 117 Mass. 603; 40 Wis. 124. Nor can it confer the characteristic duties of an officer upon another. Warner v. People, 2 Denio, 272; Sprague v. Brown, 40 Wis. 612; State v. Brunst, 26 Wis. 413; S. C. 7 Am Rep. 84; People v. Flanagan, 66 N.Y. 237; Cooley Con. Lim. 216; Jones v. Robbins, 8 Gray, 338. The 9th section of the charter suspends the power given by the general law to the selectmen over the village. Ward v. State, 17 Ohio St. 32. Power to restrain implies power to license. Smith v. Madison, 7 Ind. 86; St. Louis v. Smith, 2 Mo. 113; 1 Dill. Mun. Cor. 365; 50 Ill. 28; City of Emporia v. Volmer, 12 Kan. 622. The power to regulate cannot exist in two independent bodies. Daw v. Metropolitan Board, 104 E. C. L. 162; State v. Clarke, 54 Mo. 17; S. C. 14 Am. Rep. 471; 1 Dill. Mun. Corp. s. 88; Ex parte McNair, 13 Neb. 195.

Edward Dana, for the State.

Under the Bill of Rights, art. 5, the legislature can pass laws regulating the internal police. Lincoln v. Smith, 27 Vt. 337; Cooley Const. Lim. s. 706; State v. Peterson, 41 Vt. 504. The legislature has made provision for town grand jurors as informing and prosecuting officers; and has the right to make provision for other similar officers. State v. Douglas, 26 Wis. 428; People v. Morrell, 21 Wend. 563. The authority of grand jurors as informing officers has never been questioned. The legislature may add to their duties, or establish other officers to perform part of them. Wales v. Belcher, 3 Pick. 508; 8 Gray, 1; 117 Mass. 604; Hyde v. State, 52 Miss. 673; 52 Ala. 79; 15 Iowa 553. While the Constitution provides for the election of state's attorneys, their duties have always been defined by the legislature. The state's attorney may be excluded entirely from the prosecution of offenses. In re Barker, 56 Vt. 26.

OPINION

TAFT, J.

1. The law of this State authorizes the selectmen of any town to permit the use of billiard tables, under regulations prescribed by them, R. L. s. 4070; or they may forbid the use of them, s. 4068.

This law being in force, the village of Middlebury was chartered and given the power to pass by-laws to suppress and restrain all descriptions of gaming, which clearly include the game of billiards.

The word "restrain," when used as it is in the village charter has been held to confer the power to license. Smith v. The City of Madison, 7 Ind. 86; The City of Emporia v. Volmer, 12 Kan. 622; State v. Clarke, 54 Mo. 17. It is not synonymous with "suppress," but contemplates the continued existence of the business, placing it within bounds; in effect licensing it.

The powers conferred upon the selectmen and the village corporation are substantially the same; and if the claim of the prosecutor is the correct one, then each has the power to license, or suppress, gaming in the village limits.

It can hardly be supposed that the legislature intended such a result. The provision in the charter derogates from, and is inconsistent with, the general law; and the legislature must have intended by it to repeal the latter, as to the territory embraced in the village limits.

The case of Daw v. Metropolitan Board, 104 E.C.L. 162, is similar to the one at bar. The question was, which of two public boards had power to number the houses in certain streets. The court say: "Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the legislature co exist, the earlier must necessarily be repealed by the later statute. The purpose of numbering houses is to distinguish them from each other; and, if the two boards had each the power to alter the numbers, that purpose would be frustrated."

In this case, if the general law was not repealed by the charter, the selectmen could suppress, and the village license, or the village suppress, and the selectmen license, by contemporaneous action.

Such a state of affairs could never have been contemplated by the legislature. The acts are repugnant, and the former is superseded by the latter. In Bennington v. Smith, 29 Vt. 254, the selectmen of the petitioning town laid out a highway in the village of Bennington, whose charter invested the trustees of the village with the same power and authority over highways within the village limits...