Melvin G. Morse v. Frank H. Tracy
| Decision Date | 28 May 1917 |
| Citation | 100 A. 923,91 Vt. 476 |
| Parties | MELVIN G. MORSE v. FRANK H. TRACY |
| Court | Vermont Supreme Court |
May Term, 1917.
PETITION for a writ of mandamus brought to the Supreme Court for Washington County, and heard at the May Term, 1917. on an agreed statement of facts. The opinion states the case.
Petition dismissed, without costs.
Melvin G. Morse and Hale K. Darling for the petitioner.
Julius A. Willcox for the petitionee.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
This is a petition for a writ of mandamus directed to the petitionee as sheriff of Washington County, commanding him to draw the petit jurors for attendance upon the September Term 1917, of Washington County Court, in the manner directed by P. S. 1469, No. 82, Acts of 1910, and from the names therein indicated. The controversy arises over an act of the General Assembly of 1917 relating to the drawing of jurors and establishing a jury commission (No. 76 of the Acts of 1917). The act, if valid, amends certain sections of the Public Statutes, and repeals others, relating to choosing, drawing, and summoning grand and petit jurors.
Among other things the petition alleges in substance, the passage by the Senate and House of Representatives of a certain bill called House bill 375, entitled "An act to amend certain sections of the Public Statutes relating to drawing grand and petit jurors and to establish a board of jury commissions"; that as finally adopted by the General Assembly the bill contained the proviso: "But nothing in this act shall affect the nomination, appointment, election drawing, service or compensation of grand and petit jurors chosen, drawn and summoned prior to the day on which this act takes effect"; that through clerical error in preparing the bill to be presented to the Governor for his approval, the word "or" was substituted for the word "and," so that the bill as signed by the presiding officers of the two houses and subsequently approved by the Governor contained the proviso: "But nothing in this act shall affect the nomination, appointment, election, drawing, service or compensation of grand or petit jurors chosen, drawn or summoned prior to the day on which this act takes effect"; that the bill signed by the Governor was thereafter deposited in the office of the Secretary of State where it remains, having been published by him as No. 76 of the Acts of 1917; that the bill enacted by the General Assembly was never presented to the Governor and never in fact approved by him.
It is further alleged that, acting on the assumption that the bill as it had been presented to and signed by the Governor had become the law of the State, the assistant judges and clerk of Washington County Court, in which the petitioner has a cause pending and for trial by jury at the September Term, 1917, of said court, assuming to act as a board of jury commissioners under the provisions of said bill, on the 10th day of May, 1917, prepared and filed a list of petit jurors as therein provided; that the petitionee is the sheriff of said county and has been directed by the judges of said county court on an appointed day to draw the petit jurors for service at the September Term of said court; that the petitioner is advised and believes that the petitionee intends to draw such jurors from the list of names prepared and filed as above stated; that such list is not a proper nor legal one from which such jurors should be drawn; that jurors should be drawn only from the list of persons nominated, elected and returned under the provisions of sections 3515 and 3516 of the Public Statutes; and that such drawing should be conducted in accordance with the provisions of section 1469 of the Public Statutes, as amended.
The case has been heard on an agreed statement of facts in which the petitionee admits the allegations of the petition and that he intends to draw the petit jurors for the September Term, 1917, of Washingon County Court from the list of names prepared and filed under the provisions of the act in question. The petitioner contends: (1) That House Bill 375 published as No. 76 of the Acts of 1917, never became a law and that all proceedings thereunder are void; and (2) that, if the act as signed by the Governor is in force, the list made up by the jury commissioners cannot be used for drawing jurors for service at the September term 1917, of Washington County Cour...
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