Lewis v. Holden

Decision Date06 October 1953
Docket NumberNo. 1819,1819
CourtVermont Supreme Court
PartiesLEWIS v. HOLDEN, Com'r of Education, et al.

Daniels & Reed, Montpelier, for plaintiff.

Robert T. Stafford, Deputy Atty. Gen., for A. John Holden, Jr.

Charles A. Plumley, Northfield, for Walter D. Gallagher and others.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

CLEARY, Justice.

This is a petition for a writ of certiorari to review the action of the commissioner of education, determining the residence for school purposes of the petitioner's nephew, Newell R. Lewis, a minor.

The petition alleges that the minor, now sixteen years of age, heretofore residing with his father in Montpelier, went to reside with and at the home of his uncle, the petitioner, at Northfield, in June of 1952, and entered Northfield High School at the beginning of the fall term. Whereupon the petitioner was informed by the defendant school board and Gallagher, the school superintendent, that, since the petitioner did not have legal control of the minor, the Town of Northfield would not be responsible for his tuition. Subsequently the petitioner and the minor's father, Clayton D. Lewis, signed a written instrument approved by the minor, whereby the parent relinquished all control and agreed that henceforth the petitioner was to have the care, custody and control of the minor. The instrument was then presented to the defendant school board and superintendent who notified the petitioner that the agreement was not acceptable under the laws to waive tuition on the nephew. The petitioner then requested the commissioner of education to determine the residence of the minor, pursuant to V.S. 47, § 4308. After hearing, the commissioner determined that the residence of the minor for school purposes is where his father resides in Montpelier. Hence the present petition to this Court.

The first issue presented is whether the act of the commissioner of education in determining the residence for school purposes of the minor is reviewable by this Court on a writ of certiorari under the circumstances of this case. V.S. 47, § 4308, so far as material here, reads as follows: 'the residence of a pupil is where the person having legal control of him resides and the board of school directors shall determine such residence; but any interested person or taxpayer who is dissatisfied with the decision of such board * * * may appeal to the commissioner of education, who shall determine such residence and his decision shall be final.' There is no method provided by the statute for taking an appea from the decision of the commissioner of education.

The issuing of the writ of certiorari is largely a matter of discretion. We hear the case upon the petition and subsequent pleadings, and practically decide it upon the granting or refusal of the writ. Davidson v. Whitehill, 87 Vt. 499, 502, 89 A. 1081; City of St. Albans v. Avery, 95 Vt. 249, 252, 114 A. 31; Chase v. Billings, 106 Vt. 149, 152, 153, 170 A. 903. The writ issues only when there is no other adequate remedy at law, and brings up for review only substantial questions of law affecting the merits of the case involved in the proceedings below. Davidson v. Whitehill, 87 Vt. 499, 508, 89 A. 1081.

The defendants cite Proctor v. Hufnail, 111 Vt. 365, 16 A.2d 518 and contend that in making his determination the commissioner of education exercised his discretion and his action cannot be reviewed here. In the Hufnail case the statute in question involved the exercise of the commissioner's judgment and discretion. In the present case the commissioner's decision did not rest in his judgment or discretion. He was called upon to determine the residence of the minor. This involved substantial questions of law affecting the merits of the case, namely, the legal sufficiency of the parent's agreement respecting the minor and interpretation of the words 'legal control' as used in the statute in question. In passing upon the appeal in the present case the commissioner acted in a judicial or quasi judicial capacity. Therefore his act is reviewable here. Town School Dist. of Maidstone v. Dempsey, 103 Vt. 481, 485, 156 A. 387.

The second issue is whether the agreement of the father placed the legal control of the minor in the petitioner within the meaning of V.S. 47, § 4308. However this is decided the petitioner contends that a third issue is the proper interpretation of this statute and says the history of the statute should be considered. Previous to 1927 the statute read: 'the residence of a pupil is where the person having control of him resides.' The Legislature of 1927 amended it by adding the word 'legal' before the word 'control' to read as it does now. Acts of 1927 No. 30. The petitioner offers no explanation of the amendment except to suggest that the addition of the word very well may have been made by a draftsman through inadvertence. But we cannot assume that it was placed in the act inadvisedly and without legislative intent that it should be given meaning and force in the application of the law. One of the fundamental rules of statutory construction is that the provision must be considered as a whole, and, if possible, effect given to every word, clause and sentence contained therein. Proulx v. Parrow, 115 Vt. 232, 236, 56 A.2d 623.

In the interpretation of statutes the fundamental rule is to ascertain and give effect to the intention of the Legislature. State v. Legacy, 116 Vt. 320, 322, 75 A.2d 668; State v. Estate of Taranovich, 116 Vt. 1, 5, 68 A.2d 796; Troy Conference Academy v. Town of Poultney, 115 Vt. 480, 489, 66 A.2d 2. The legislative intent must be ascertained from the act itself, if the language is plain. Doubleday v. Town of Stockbridge, 109 Vt. 167, 172, 194 A. 462. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the statutory provision. Snyder v. Central Vt. Ry., 112 Vt. 190, 193, 22 A.2d 181. Where the meaning of a statute is plain, courts have the duty to enforce it according to its obvious terms, and there is no necessity for construction. Blanchard v. Blanchard's Estate, 109 Vt. 454, 459, 199 A. 233; State v. Stevens, 116 Vt. 394, 397, 77 A.2d 844.

'Legal' may mean 'lawful', Kinsley v. Herald & Globe Ass'n, 113 Vt. 272, 275, 34 A.2d 99, 148 A.L.R. 1164; it means 'done according to law,' Wharton's Law Lexicon; 'according to law', 2 Bouv. Law Dict., Rawles Third Revision, p. 1909; Black's Law Dictionary, 2d Ed., p. 708. Black also defines 'legal' as 'conforming to law; required or permitted by law; good and effectual in law.' In the case of In re Folwell's Estate, 68 N.J.Eq. 728, 62 A. 414, 415, 2 L.R.A.,N.S., 1193, it is defined as 'according to the principles of law; according to the method required by statute; by means of judicial proceedings'. We think the plain meaning of the word as used in the statute in question here is lawful control, that is, control according to law. See also Deering v. Tucker, 55 Me. 284 and Walton v. State, 145 Tex.Cr.R. 521, 170 S.W.2d 224, to the same effect.

Using that definition the petitioner did not have such control that his residence was the residence of the minor for school purposes. He was neither parent, foster parent nor guardian, and the minor was not apprenticed to him.

The petitioner devotes considerable space to the argument that the written instrument in question is valid and says the test to be applied is whether the agreement is favorable or unfavorable to the interests of the infant, citing In re Cooke, 114 Vt. 177, 183, 41 A.2d 177. There the Court was considering the custody of an infant...

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