Town of Hyde Park v. St. Johnsbury & L. C. R. Co.

• Decision Date: 05 May 1911
• Court: Vermont Supreme Court
• Parties: TOWN of HYDE PARK v. ST. JOHNSBURY & L. C. R. CO. et al.

79 A. 873

84 Vt. 326

TOWN of HYDE PARK

v. ST. JOHNSBURY & L. C. R. CO. et al.

Supreme Court of Vermont. Special Term at St. Johnsbury.

May 5, 1911.

Appeal from an order of the Public Service Commission.

Action by the Town of Hyde Park against the St. Johnsbury & Lake Champlain Railroad Company and others. Appeal directed to the Supreme Court from an order of the Public Service Commission. On motion to dismiss the appeal. Sustained.

See, also, 83 Vt. 562, 77 Atl. 913.

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

Thomas C. Cheney, for appellant.

Harry Biodgett and Roger W. Hulburd, for appellees.

ROWELL, C. J. This is an appeal from an order of the Public Service Commission made and promulgated June 14, 1910. The appeal is taken on the strength of leave granted by a majority of the commission on November 29, 1910.

But the commission had no authority to grant the leave, for both the right of appeal and the time and manner of exercising the right are fixed and regulated by statute. Thus the right of appeal is given by P. S. 4551, as amended by section 4, No. 108, Acts 1908. The manner of appeal is regulated by P. S. 4600, and is that the appeal shall be taken and entered in this court in the manner and under the laws and rules of procedure that govern such appeals from the court of chancery. Term decrees of the court of chancery are appealed from by a written motion filed at the term in which the decree is made, with some exceptions not necessary to be stated. P. S. 1307. Vacation decrees in chancery are appealed from in the same way, but the time for filing the motion is computed from the time when the decretal order is filed. P. S. 1239. Section 1301 of the Public Statutes provides that "after twenty days from the time a final decree is made, if no appeal is entered therefrom nor petition for a rehearing filed, the clerk shall record the decree." It is the motion that effectuates the appeal when the right exists and no action of the court need supervene upon it, for the court has nothing to say about it. Smith v. Burton, 67 Vt. 514, 32 Atl. 467.

In Greene v. McDonald, 72 Vt. 258, 47 AtL 779, the decree was filed January 16th, and the motion for an appeal was filed February 10th and held too late. The court said in so many words that a motion for an appeal from a vacation decree must be filed within 20 days from the time the decretal order is filed with the clerk, and at the term in which the decree is made; and ...