Roy v. Farr, 41-69

• Decision Date: 14 October 1969
• Docket Number: No. 41-69,41-69
• Citation: 258 A.2d 799,128 Vt. 30
• Court: Vermont Supreme Court
• Parties: Louis G. ROY v. Sumner FARR, Health Officer for the Town of Richmond and Sumner Farr, Ranson Conant and Vincent Palermo, Board of Health of the Town of Richmond.

Page 799

258 A.2d 799

128 Vt. 30

Louis G. ROY v. Sumner FARR, Health Officer for the Town of Richmond and Sumner Farr, Ranson Conant and Vincent Palermo Board of Health of the Town of Richmond.

No. 41-69.

Supreme Court of Vermont.

Oct. 14, 1969.

Coffrin & Pierson, Burlington, for petitioner.

Latham & Eastman, Burlington, for petitionees.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

This is a petition for a writ of mandamus by which the petitioner seeks to compel the board of health of the town of Richmond to abate an unhealthful condition existing on land adjacent to the residential property of both the petitioner and other persons as provided by 18 U.S.A. § 609.

The petition was brought on February 28, 1969. At that time defendants Farr, Conant and Palermo were the selectmen of the town of Richmond. Selectman Farr was the appointed health officer of the town. 18 U.S.A. § 601. The selectmen, together with the health officer, constitute the local board of health. 18 V.S.A. § 604.

The record shows that defendant Farr's term of office expired on town meeting day, March 4, 1969. At that time one Gordon B. Stensrud was elected selectman to fill this vacancy. It also appears that defendant Conant deceased on March 16, 1969. Defendant Palermo joined by selectman Stensrud filed an answer admitting some of the allegations in the petition and denying others. Both petitioner and the abovenamed selectmen acting as the board of health of the town filed a memorandum of law. The case is submitted to this Court without oral argument.

In Spiritual Atheneum Society v. Selectment of Randolph, 58 Vt. 192, 194, 2 A. 747, it was held that this court will not issue a writ of mandamus against defendants not in office after the petition is brought or against their successors in office. See also Page v. McClure, 79 Vt. 83, 89, 64 A. 451, and 34 Am.Jur., Mandamus, § 124. The only person named in the petition who is subject to the writ, if issued, is defendant Palermo.

In order to have the proper and necessary parties before the court, an interlocutory order and summons was issued and served on the present members of the Richmond Board of Health not named in the original petition shown by the public records to be Dr. John Lantman, Health Officer, and Selectmen Willard Conant and Gordon Stensrud. Said parties were required by our citation to cause their appearance to be entered with the clerk of this court on or before October 7, 1969, then and there to make answer, if any they had, why the petition of the petitioner should not be granted. Said parties have failed and neglected to answer the petition as required by the citation. However, we view the case as though the said parties had joined in the answer and the memorandum of law previously filed on behalf of the local Board of Health.

The board of health resists the petition on two grounds-(1) it claims the removal of the unhealthful condition by the board under 18 V.S.A. § 609 is not mandatory duty for the reason that such action requires the exercise of its judgment and discretion and is not a ministerial act, and (2) it contends that the petitioner has an adequate remedy by an action for abatement of a public nuisance against the offending landowner.

The following facts which appear in the petition and answer are undisputed. The petitioner is a resident and owner of certain real estate located on Lemroy Court in the town of Richmond. In 1966 an unhealthful condition existed on land adjacent to petitioner's residential property on Lemroy Court and to other lands which he had developed into residential properties. This condition resulted from the discharge of raw sewage by one George Dutil into an open gully southeast of petitioner's residence. The defendants were notified of this unhealthful condition by the Vermont Department of Health in March 1967, and were advised that the discharge of the sewage was considered to be a public health hazard. On June 27, 1967, defendant Farr, as the town health officer, notified the offending property owner, George Dutil, that the unhealthful condition was due to the discharge of raw sewage from his disposal facilities and that in the event he, Dutil, failed to comply with the order of the defendants requiring him to remove the unhealthful condition within thirty days, the defendant would order the removal of the condition pursuant to 18 V.S.A. § 609 and charge him, Dutil, with the expense of the same. Dutil failed to comply with the order and the unhealthful condition still exists.

The critical question to be first decided is whether mandamus will lie on the facts shown in this case.

The duties of the health officer regarding sanitary inspections are prescribed by 18 V.S.A. § 606 as follows:

The health officer shall make sanitary inspections when and where he has reason to suspect that anything exists which may be detrimental to the public health. He may enter any house or other building or place for the purpose of making such inspections. By written order he shall direct the destruction or removal within a specified time of unhealthful conditions or causes of sickness; and shall in all things conform to the rules and regulations of the board.

The facts show a compliance with the mandate of this statute. The inspection was made and a written order was given to the offending party, George Dutil. He was directed by said order to remove the condition, failing which the board of health would do so at his expense as provided by 18 V.S.A. § 609. This section reads:

A person who neglects or refuses to comply with a written order of a local board of health or health officer issued under this chapter, when no other penalty is provided, shall be fined not more than $100.00 or less than $5.00. Upon such neglect or refusal, the local board of health may prevent, remove or destroy any unhealthful conditions or causes of sickness, at the expense of the town it represents, and such expense may be recovered of the person whose legal duty it was to comply with such order.

The local board took no remedial steps to enforce its order by having the condition prevented or removed. The petitioner claims that since Dutil did not comply with the order, the board, under Section 609, supra, must take action to have the condition eliminated. The defendant contends that its duty under the statute is discretionary and requires the exercise of its judgment which, if true, will supersede mandamus since the writ does not lie to enforce the performance of judicial or quasijudicial acts. Under such circumstances, this Court will not order the board to act. Rutland Hospital, Inc. v. State Board of Health, 126 Vt. 41, 45, 220 A.2d 722; Couture v. Selectmen of Town of Berkshire, 121 Vt. 359, 361, 159 A.2d 78; Carpenter's Admr. v. Brown, 118 Vt. 148, 152, 102 A.2d 331; Proctor v. Hufnail, 111 Vt. 365, 369, 16 A.2d 518.

On the other hand, mandamus will lie to compel a public officer to perform an official act which is merely ministerial. Town of Bennington v. Booth, 101 Vt. 24, 27, 140 A. 157, 57 A.L.R. 156; Town of Glover v. Anderson, 120 Vt. 153, 155, 134 A.2d 612. So here, in order to justify the issuance of a writ of mandamus, it must be made to appear that the duty of the local board of health to remove the public health hazard is a ministerial one. Barber v. Chase, 101 Vt. 343, 351, 143 A. 302, and that the right sought to be enforced is certain and clear. Glover v. Anderson, supra.

However, there is a well-recognized exception to these general propositions depending upon whether the facts make it a proper case to come within the exception. Where such facts show, in some manner, an arbitrary abuse of the power vested by law in an administrative officer or board which amounts to a virtual refusal to act or to perform a duty imposed by law, mandamus may be resorted to in the absence of other adequate legal remedy. Couture v. Selectmen of Berkshire, supra, 121 Vt. at page 361, 159 A.2d 78; Proctor v. Hafnail, supra, 111 Vt. at page 370, 16 A.2d 518; Sanborn v. Weir, 95 Vt. 1, 6, 112 A. 228.

The petitioner has a clear right not to be subjected to the unhealthful condition determined by the State Department of Health to be a public health hazard. The defendant admits that the discharge of raw sewage as shown is a condition which has existed for many years. The situation ostensibly developed to such a serious and hazardous unhealthful condition that the State health authorities acted in 1967. It is evident that the local health officer likewise determined that such condition existed or else the order of removal would not have been issued. The right which the petitioner seeks to be enforced is adequately shown to be certain and clear.

The defendant argues that...