Town of Shelburn v. Eldridge , 10 Vt. 123 ( 1838 )

The opinion of the Court was delivered by

Royce, J.

The right of recovery, in this case, is resisted on several grounds.

It is contended that the committee had no legal authority to act, because they were not appointed at an earlier term of the county court. The appeal was claimed under the statute of 1828, which directed, that in such a case, the clerk of the road commissioners, should lodge a copy of the proceedings with the clerk' of the county court, and such court was required to appoint a committee of revision, at the first term after such copy should be lodged with their clerk. It is to be inferred, from the notice issued by the clerk of the road commissioners to the defendants, that the copy of the proceedings was first lodged with the clerk of the county court, during the session of the. November adjourned Term, 1829. The stated August Term must have intervened, after the appeal claimed. But, as the statute did not expressly limit the time in that particular, the return to the November Term was not. irregular or void. And it is at least doubtful whether the committee could legally have been appointed at that term, since-it was not the next term after the proceedings toere lodged in court. In reference to appeals in other cases, this language has been uniformly held to exclude a present or existing session of the court appealed to, and carry the appeal to the next succeeding term. There is, therefore, no ground on which the appointment, made at March Term, 1830, can be pronounced a nullity. It would require the most explicit negative terms in the statute to justify such a conclusion.

It is further insisted, that the powers of the committee were defeated by the repealing act of 1831, or else that they became lapsed and determined, by the neglect of the committee, for so long a period, to act under their appointment. The act of 1831, contains a proviso, that “ it shall not be construed to aflfect any proceedings or liabilities already commenced or incurred.” To hold that it did operate to dissolve the powers of the committee, would, ■ therefore, be in direct opposition to the statute; it would be not only to affect, but to destroy proceedings then in progress, for revising the doings of the road commissioners. In reference to the other ground, it must be admitted that here was an unreasonable delay, on the part of the committee; but they were commissioned to act in a matter affecting the interests of others, a business of public concern, and the law had not restricted the exercise of their powers, to any particular time. Their commission, being unlimited in terms might, therefore, be executed at any time, until a change of circumstances should render its execution no longer necessary or useful.

The remaining objection is, that the plaintiffs have mistaken their remedy; — that they could only have taken execution for their costs, as provided by the acts of 1828, 1830, and 1832, or sought redress by petition to the county court, under the act of 1833. The decision of the committee was made in March, 1832. Previous to that time no execution could issue, except from the clerk of the road commissioners, and that office was abolished in the autumn of 1831. The authority of the county clerk, to discharge the former duties of the road commissioners’ clerk, was not given till a year afterwards. It would follow, upon the ground assumed in the defence, that there was a suspension of all remedy from March, 1832, until the November following. But the decision of the committee was not only of a judicial character, but was expressly made a final and conclusive adjudication. It, there-, fore, as conclusively created a debt against the original petitions, as the judgment of any court of record could have done. And hence, in conformity to the most familiar principles applicable to this kind of action, debt became an ap~. propriate remedy to collect it. And if this remedy would have been sustained during the period above mentioned, when there was no othor, we do not think it ceased to exist, when the power of issuing executions was afterwards re-, vived. Such a principle cannot be affirmed of judgments in general, which may be enforced by execution. Besides, if the act of 1833 should be construed to apply only to the doings of road commissioners, and not to those of a county court committee reversing their proceedings; and if the remedy by execution is limited to a year, as in ordinary cases ; (and such was the intimation in Hill v. Sunderland, 7 Vt. R.) then, unless the action of debt will lie, after the lapse of a year, (which is this case) there can be no remedy whatever. This, however, is not a necessary point to be decided. It is sufficient that a power to take execution is not alone an answer to this form of action.

Judgment of the County Court affirmed