CAREY V. THOMPSON et al., School Directors.

(Supreme Court of Vermont.

Aug. 25, 1894.)

Washington.

SCHOOL-TRANSPORTATION OF SCHOLARS-DISCRETION OF BOARD.

Acts 1892, No. 20, § 6, provides that the school shall be held at such times and places as the directors deem practicable, and the board "may use" part of the school money in conveying scholars to and from school. Held, that the question of transportation was in the discretion of the board, and, in the absence of intentional discrimination, mandamus will not lie to compel such transportation.

Mandamus by William Carey against J. B. Thompson and others, school directors, to compel transportation of scholars. Dismissed. E. F. Palmer, for petitioner. Geo. W. Wing, for petitionees.

MUNSON, J. This petition for mandamus alleges that the school directors of the town of which the relator is a resident and taxpayer have neglected to support a school within 214 miles of the relator's house, and have refused to use any part of the school money of the town for the purpose of conveying his children to and from any school, and have made no attempt whatever to give his children school advantages equal to those enjoyed by the other scholars of the town. The respondents, in their answer, admit that they have made no arrangements for carrying any of the scholars of the town to and from school, but deny that they have refused to provide for the conveyance of the relator's children, or other children similarly situated, otherwise than by requiring the relator and other parents to send their children for a time without transportation, and so ascer tain by experiment whether the distance is too great for them to travel; and further aver that in locating the schools of the town as they have, and in conditionally declining to provide transportation for the relator's children, and other children similarly situated, they have exercised their best judgment and discretion.

The question raised involves the construction of a provision contained in section 6, No. 20, Acts 1892, which reads as follows: "Said schools shall be within the limits of said town, and at such places, and held at such times, as in the judgment of the board of directors will best subserve the interests of education and give all the scholars of the town as nearly equal advantages as may be practicable; and said school board may use a portion of the school money, not exceeding 25 per cent. thereof, for the purpose of conveying scholars to and from such schools." The directors are authorized by this provision to use a portion of the school money, not exceeding a certain per cent., for the transportation of scholars. The permissive form of the provision is not conclusive as to the nature of the enactment. It is to be con

strued as imposing an imperative duty, if such was the purpose of the legislature. That purpose is to be gathered from the language of the act, the nature of the subject-matter, and the ends sought to be accomplished. The end sought here is equality of school privileges, but the statute clearly recognizes the fact that entire equality is impossible of attainment, and that much must be left to the discretion of those in whose hands the administration of the law is placed. The differences in the number of scholars to be provided for, in the means available for the various demands of the work, in the proximity of schools and the condition of roads, and in the ages and strength of scholars, are such as to induce a belief that absolute rules would be more likely to work injustice than the exercise of official discretion. We think it was obviously the intention of the legislature to leave the question of transporting scholars to the discretion of the school directors. Petition dismissed, with costs.

THOMPSON, J., was absent, in county

court.

SAWYER v. CROSS et al. (Supreme Court of Vermont. Washington. Aug. 30, 1894.)

AUDITA QUERELA-PLEADING.

Where, in audita querela, plaintiff's declaration did not set up the injustice of defendant's demand, and the declaration was held good on demurrer, defendant cannot set up as a defense that his claim was a just one.

Exceptions from Washington county court; Rowell, Judge.

Audita querela by C. H. Sawyer against C. H. Cross & Son. Judgment was rendered for plaintiff, and defendants except. Affirmed.

J. W. Gordon, for plaintiff. Martin & Slack and Geo. W. Wing, for defendants.

MUNSON, J. The court below found the material allegations of the declaration proved, and also found, from evidence objected to by the plaintiff, that the judgment complained of was founded upon a just demand. In a former hearing of this case, reported in 65 Vt. 158, 26 Atl. 528, the declaration was held sufficient on demurrer. The declaration contains no allegation that the plaintiff has a defense to the note on which the the judgment was taken. The plaintiff having now established on trial the facts held sufficient on demurrer, the defendants seek to set up the justness of the demand recovered upon, by way of defense. This matter, however, is nothing in the nature of an avoidance, but is something which, if material at all, was essential to the plaintiff's So the holding on demurrer was an adjudication that the plaintiff is entitled to this relief, without regard to the character

case.

of the demand recovered upon; and the case, as now presented, raises no question that was not then disposed of. Judgment affirmed.

In re BOROUGH OF COLUMBIA. Appeal of LANCASTER COUNTY et al. (Supreme Court of Pennsylvania. July 12, 1894.)

BOROUGHS-DIVISION INTO WARDS.

Act May 14, 1874, provided that, on the filing of a petition of freeholders to divide a borough into wards, the court of quarter sessions should appoint three impartial men to inquire into the propriety of granting it, but it did not specify the notice to be given of the time, place, and purpose of such commissioners' meeting. Held, that small handbills posted in 10 or 12 hotels and saloons of a borough of 12,000 inhabitants, with daily and weekly newspapers, were not a proper notice to the persons interested in the division.

Appeal from court of quarter sessions, Lancaster county.

Appeal of the county of Lancaster anu Robert L. Conklin, an inhabitant of the borough of Columbia, from a decree dividing said borough into wards. Reversed.

At a court of quarter sessions held in and for the county of Lancaster on the 21st day of January, 1893, a petition of freeholders, residents of the borough of Columbia, in said county, was presented, asking the court to appoint three impartial men to inquire into the propriety of dividing the borough of Columbia into wards to suit the convenience of the inhabitants thereof, according to the provisions of the act of assembly. On January 23, 1893, the court appointed commissioners to inquire into the propriety of granting the prayer of the petitioners. Subsequently an order was issued to the commissioners which directed them to inquire into the propriety of granting the prayer of the petitioners, "and if they, or any two of them, shall be of opinion that such division is necessary for the convenience of the inhabitants thereof, shall make a plot or draft of the proposed new election district or districts, if the same cannot be fully designated by natural lines or boundaries, all of which they, or any two of them, shall report to the next court of quarter sessions, together with their opinion of the same." At the April sessions, 1893, the commissioners made their report, but failed to state their "opinion of the expediency and propriety of a division," though they reported in favor of dividing the borough into nine wards. order to the commissioners contained no direction to them as to the character of the notice to be given by them of the time, place, and purpose of their meeting. This report of the commissioners was subsequent. ly confirmed absolutely by the court on August 24, 1893; and on October 25, 1893, the court, in a decree by Brubaker, J., fixed the polling places in the nine wards into

The

which the borough was divided by the report of the commissioners. Subsequently an appeal was taken by the county of Lancaster and Robert S. Conklin, an inhabitant of the borough of Columbia, from the decree of the court confirming the report of the commissioners dividing the borough into ninewards and nine election districts.

Lane, Beyer, Brown & Hensel, for appellants. C. C. Kauffman, W. T. Brown, Wm B. Given, and Chas. I. Landis, for appellees.

STERRETT, C. J. It is of the first importance in proceedings such as this that proper public notice of the time, place, and purpose of the commissioners' meeting, etc., be so given that it will be likely to reach every person who is or may be interested therein. Anything short of this is sure to be unjust to individuals and detrimental to the public interest. True, the act is silent on the subject of notice; but, as was well said in Brown v. Fowzer, 114 Pa. St. 446, 451, 6 Atl. 106: "Proper notice of the proceedings should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order. The report should certify specially what notice was given, so that it may appear on the face of the proceedings that the order of the court has been complied with. The powers conferred by the act are of a public and important character, and all parties interested ought to have an opportunity to be heard, and such opportunity can best be obtained by an adequate notice so given as to reach most effectively the various parties." It is elementary law that those interested in or affected by a judicial proceeding should have proper and timely notice thereof; and if the kind of notice to be given, etc., is not prescribed by statute, it is clearly the duty of the court in which the proceeding is inaugurated to direct, either by standing rule or special order, the kind of notice, etc., that shall be given. In this case, on presentation of the petition, commissioners were appointed without any order or provision whatever as to notice. The order issued to them is not only silent as to the character of the notice to be given by them of the time, place, and purpose of their meeting, but it directs that "if they, or any two of them, shall be of opinion that such division is necessary for the convenience of the inhabitants thereof, they shall make a plot or draft of the proposed new election district or districts, if the same cannot be fully designated by natural lines or boundaries," etc. This substitution of "Election Districts" for "New Wards" doubtless occurred, as has been suggested, by using the wrong blank form; but that is a very unsatisfactory excuse for the careless and erroneous practice which has characterized this proceeding. As appears by their report, the commissioners, prompted perhaps by their own conviction of the necessity for notice of

some sort, caused small handbills to be posted in 10 or 12 of the hotels, saloons, etc., of the borough. So far as appears, no other attempt was made to notify the people of the proceeding in which they were all more or less interested. It is needless to say that for a borough of about 12,000 inhabitants, with daily and weekly newspapers circulating in their midst, such notice as was given was wholly insufficient. Such irregular and erroneous proceedings cannot be sustained. Petition dismissed, and all proceedings thereunder reversed and set aside.

STATE ex rel. COOPER v. MAYOR, ETC., OF JERSEY CITY.

(Court of Errors and Appeals of New Jersey. March Term, 1893.)

Error to supreme court.

Charles H. Voorhis, for plaintiff in error.

PER CURIAM. The judgment of the supreme court is affirmed, for the reasons given below.

STATE v. LE CLAIR.

(Supreme Judicial Court of Maine. Aug. 17, 1894.)

INTOXICATING LIQUORS COMPLAINT AFTER SEIZURE-SUFFICIENCY STATUTE VALIDITY CLERK LEWISTON MUNICIPAL COURT-AUTHOR

ITY.

1. To a process for the seizure of intoxicating liquors a special demurrer was interposed to the complaint and warrant, specifying two grounds of objections: (1) That the complaint and warrant constituted a seizure process, and not a search and seizure process; (2) that the clerk of the municipal court of Lewiston, and not the judge, received the complaint and issued the warrant. Held, that the complaint and warrant are properly made in accordance with the facts, and are unobjectionable in form.

2. When an officer has, without a warrant, seized intoxicating liquors kept for unlawful sale, and thereupon makes his complaint and takes out a warrant as provided by statute, he is not required to insert in his complaint a false recital that the liquors which he has seized and removed "are still kept and deposited" by the defendant; nor is there any necessity of a command in the warrant to search premises for what the officer has already taken, and knows cannot be found there.

3. The statute of 1870, c. 125, § 2 (Rev. St. c. 27, § 39), authorizing officers to seize, is constitutional to the extent that seizures may be made when they may be accomplished without infringing against unreasonable searches prohibited by the constitution.

4. Chapter 626, Private & Special Laws 1874, provides that "the governor, by and with advice of the council, shall appoint a clerk of said court [Lewiston municipal court], who shall hold his office for the term of four years, who shall be sworn and who shall give bond," etc.; and section 13 provides that "said clerk shall hear complaints in all criminal matters, * * * draw all complaints and sign all warrants and make and sign all processes of commitment; but the same shall be heard and determined as now provided by law, but such complaints,

* warrants or processes of commitment drawn and signed by the judge of said court shall be equally valid." In view of these enactments, it cannot be reasonably questioned that the clerk who heard the complaint and issued the warrant in this case was clearly and explicitly authorized so to do by the legislature. The duties thus performed may involve, to some extent, the exercise of judicial attributes; but it was competent for the legislature to invest the clerk of the court with the authority in question, and in so doing it did not encroach upon the judicial power contemplated by the constitution.

(Official.)

Exceptions from Androscoggin county.

Complaint and process against John Le Clair for the seizure of intoxicating liquors. There was an order overruling a demurrer to the complaint and process, and defendant excepts. Exceptions overruled, and judg ment for the state.

Frank L. Noble, for defendant. Henry W. Oakes, Co. Atty., for the State.

WHITEHOUSE, J. This is a process for the seizure of intoxicating liquors, and the case comes to this court on a special demurrer to the complaint and warrant, specifying two grounds of objection: First, that the complaint and warrant constituted a seizure process, and not a search and seizure process; second, that the clerk of the municipal court of Lewiston, and not the judge, received the complaint and issued the warrant.

1. With respect to the first objection, it appears that, by virtue of section 39 of chapter 27 of the Revised Statutes, the officer seized certain intoxicating liquors found in the defendant's shop, and forthwith signed the complaint in question, representing that he believed the liquors so found were kept for unlawful sale, and praying that a warrant might be issued authorizing a seizure of the same. The warrant in question was accordingly issued, commanding the officer to seize the liquors named in the complaint, and safely keep them until final decision of the court.

The defendant contends that the only warrant known to the prohibitory law is one which authorizes a search for, as well as a seizure of, intoxicating liquors. But the propriety of requiring an officer to insert in his complaint a false recital that the liquors which he has found and removed "are still kept and deposited" by the defendant, or the necessity of a command in the warrant to search premises for what the officer has already taken and knows cannot be found there, is certainly not apparent. The forms set forth in section 63, c. 27, Rev. St., are declared to be sufficient in law for all cases "to which they purport to be adapted." The form there provided for a "complaint in case of seizure" was prepared before the passage of the act of 1870, c. 125, § 2 (Rev. St. c. 27, § 39), and does not "purport to beadapted" to the seizure without a warrant there authorized. This change in the statute

obviously requires such a change in the form of the process as will bring it into conformity with the facts.

In this case the complaint and warrant were properly made in accordance with the facts, and are unobjectionable in form. State v. McCann, 59 Me. 383.

By the amendment of 1870, above referred to, "no new or additional authority is given to search. It is only to seize. It is to seize what the officer may be enabled to seize without the unreasonable searches prohibited by the constitution. The act, to this extent, is constitutional." State v. McCann, supra; Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Gray, 355.

2. The complaint in this case is addressed, "To the Clerk of Our Municipal Court for the City of Lewiston," and is sworn to before the clerk. The warrant issued on this complaint is signed by the clerk, but bears teste of the judge of the court.

As originally constituted, the municipal court for the city of Lewiston was declared to be a court of record consisting of one judge, who was authorized to appoint a recorder to act in his stead in certain contingencies named in the act. See chapter 636 of the Private Laws of 1871. But this act was amended by chapter 626 of the Private Laws of 1874. Section 12 of this act provides that "the governor by and with the advice of the council shall appoint a clerk of said court, who shall hold his office for the term of four years, who shall be sworn and who shall give bond," etc.; and section 13 provides that "said clerk shall hear complaints in all criminal matters, *** draw all complaints and sign all warrants and make and sign all processes of commitment, but the same shall be heard and determined as now provided by law, but such complaints, * warrants or

processes of commitment drawn and signed by the judge of said court shall be equally valid."

In view of these enactments, it cannot reasonably be questioned that the clerk who heard the complaint and issued the warrant in this case was clearly and explicitly authorized so to do by the legislature; but it is contended that, while the clerk is only a ministerial officer, the act of examining a complainant and issuing a warrant involves a judicial duty which can only be performed by the judge, and that the statute purporting to authorize the clerk to exercise this function is unconstitutional and void.

An act is deemed ministerial when it is performed "by an officer in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without the exercise of, and without regard to, his own judgment upon the propriety of the act being done." Flournoy v. City of Jeffersonville, 17 Ind. 169; Pennington v. Streight, 54 Ind. 376. See, also, Longfellow v. Quimby, 29 Me. 196. And the act is none the less ministerial be

cause the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act. Betts v. Dimon, 3 Conn. 107; State v. Knowles, 8 Me. 71. See, also, Yates v. Lansing, 5 Johns. 282.

With reference to this question the court says in Com. v. Roark, 8 Cush. 215: The mere power to receive complaints and issue warrants, without any right or authority to hear or try the parties, cannot be considered an exercise of jurisdiction on the part of a magistrate. It partakes more of a ministerial than a judicial character. It is laid down in 2 Hawk. P. C. c. 13, § 20, that, when a warrant is issued for the arrest of one guilty of an offense not cognizable by the justice who issues it, the justice may be con sidered as acting ministerially." And if our attention were specially directed and confined to the language of section 40, c. 27, Rev. St., authorizing the search and seizure process, it might well be claimed that the act of the clerk in issuing the warrant in question was purely ministerial. That section declares that, "if any person, competent to be a witness in civil suits, makes svrn complaint before any judge of a municipal, or police court, or trial justice, * such magistrate shall issue his warrant." This was undoubtedly intended to be a mandatory provision requiring the magistrate to issue a warrant whenever a sworn complaint should be made reciting the prescribed state of facts, without any judicial inquiry or the exercise of any discretion on his part. He is only to satisfy himself that the complainant is "competent to be a witness in a civil suit."

But the general statute respecting the criminal jurisdiction of magistrates (Rev. St. c. 132, § 6) provides that they "shall carefully examine on oath, the complainant, the witnesses by him produced, and the circumstances, and when satisfied that the accused committed the offense, shall issue a warrant for his arrest." Again, section 43, c. 27, Rev. St., provides that "no warrant shall be issued to search a dwelling-house, * * unless the magistrate before whom the complaint is made is satisfied by evidence presented to him, that intoxicating liquor is there kept for sale in violation of law." And as the decision of other cases involving the action of this clerk under these statutes, as well as under section 40, is awaiting the result of this one, it seems proper and necessary to examine the question in the broader aspect thus presented.

Assuming, then, that, in hearing complaints and issuing warrants under the statutes last cited, the clerk necessarily makes an examination involving the exercise of discretion and judgment on his part, and performs an act possessing a certain judicial quality, the question is whether it is competent for the legislature to say that this preliminary work may be performed by a clerk of the court