State v. Plumley

• Decision Date: 28 May 1910
• Citation: 76 A. 146,83 Vt. 491
• Parties: STATE v. PLUMLEY et al.
• Court: Vermont Supreme Court

76 A. 146

83 Vt. 491

STATE

v. PLUMLEY et al.

Supreme Court of Vermont. Rutland.

May 28, 1910.

Mandamus suit by the State of Vermont against Frank M. Plumley and another. Petition dismissed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Joseph C. Jones, State's Atty., for relator.

E. H. O'Brien and It E. Brown, for respondent Plumley.

M. C. Webber and F. L. Fish, for respondent Redfield.

WATSON, J. This case was heard on the petition and the answers. The material facts alleged in the petition are that at its last annual meeting the city of Rutland voted that licenses should be granted for the sale of intoxicating liquor therein; that the respondents, then and hitherto the assistant judges of the county court in the county of Rutland, did not within 16 days after the city so voted, nor at any subsequent time, appoint a board of license commissioners for said city, as required by section 5109 of the Public Statutes. These facts thus alleged are admitted to be true by the several answers, but each respondent sets forth new matter upon which he relies as a reason for the nonperformance charged. The allegations in the answers show that from the time when such vote was taken to the present time the respondents, acting diligently, faithfully, and honestly, have tried to agree upon the appointment of license commissioners in accordance with the provisions of the statute, and for that purpose have met and consulted on many occasions; that each has presented to his associate the names of many citizens who, he thought, would accept the office and discharge the duties thereof with fairness and fidelity, but to the appointment of none of them have the respondents, respectively exercising their best judgment and discretion, been able conscientiously to agree; and that each is ready and willing to agree with the other on the appointment of any three men who in his judgment will act fairly and honestly in the performance of the duties of the office. It is argued that no reason exists why the respondents should not agree on a board to appoint. The case being presented, however, on the petition and the answers, we must consider it accordingly.

By the common law of England in proceedings of this character the return is taken as conclusive. Clement v. Graham, 78 Vt. 290, 63 Atl. 146. And under our practice, where the relator may plead to or traverse the return or answer, if no plea or traverse be filed, and the case is heard on the...