Wing v. Smilie

• Decision Date: 30 May 1891
• Citation: 22 A. 74,63 Vt. 532
• Parties: WING v. SMILIE.
• Court: Vermont Supreme Court

22 A. 74

63 Vt. 532

WING

v. SMILIE.

Supreme Court of Vermont. Washington.

May 30, 1891.

Petition for mandamus. The agreed statement of facts was as follows: "A person was arrested while in a state of intoxication, under the provisions of section 3813, R. L., by a policeman of the village of Montpelier, and at the proper time brought before said M. E. Smilie, justice, according to the provisions of said section; and the policeman, according to the provisions of law, notified said J. G. Wing, grand juror, to attend before said justice; and the intoxicated person disclosed that he obtained the liquor, etc., of the respondent; whereupon said grand juror made and exhibited to said justice the complaint against the respondent mentioned in the petition, and the proceedings set forth in the petition were thereupon had, as set forth in the petition." R. L. Vt. § 3802, provides certain fines for selling or giving away, or keeping with intent to sell or give away, intoxicating liquor in violation of law. Sections 8813-3817 relate to the arrest and punishment of a person found intoxicated, and provide that the officer making the arrest shall immediately afterwards give notice thereof and of the taking of the disclosure of such intoxicated person to a grand juror or city attorney of the town or city in which such person is found intoxicated, who shall attend at the taking of the disclosure; that such intoxicated person shall disclose the person from whom the liquor was obtained, who shall be arrested and tried, under section 3802; and that the grand juror or city attorneys so summoned shall appear and prosecute the cause in the same manner as if he had been complainant in the same.

John H. Senior and W. A. Lord, for petitioner.

E. W. Bisbee, for petitionee.

TAFT, J. It is enacted by No. 41, Acts 1886, that one-fourth of the fines imposed under section 3802, R. L., "shall go to the complainant when complaint is made, otherwise to the prosecuting officer." This proceeding is a petition for a mandamus to determine whether the grand juror, who instituted the complaints mentioned in the petition before a justice of the peace, and who prosecuted them before the justice, or the state's attorney, who prosecuted the causes in the county court, where they passed by appeal and were finally determined, is entitled to the fourth part of the fines imposed under such complaint. It was the evident intent of the legislature to encourage prosecutions under chapter 109, R. L.,...