Spiritual Atheneum Society v. Selectmen of Randolph

58 Vt. 192

Opinion

The opinion of the court was delivered by

Powers, J.

We have no occasion to decide whether the petitioner, on the facts, is legally entitled to share in the distribution of the public money given by law to religious societies who maintain stated preaching of the gospel for one fourth of the Sabbaths during the year.

The case shows that in March, 1884, the defendants, in fact, divided the public money among other religious societies. That money has gone beyond their control, An order, therefore, to allot its proper share of the same to the petitioner would be wholly nugatory. For this reason the writ of mandamus cannot be awarded as to that money. High Ex. Rem. 14.

Moreover, the petition for this writ was not filed until November 24, 1884, eight months after the claimed wrong was done, and no steps. were taken to arrest the alleged wrongful distribution of the fund while it yet remained within the control of the defendants.

The petition also prays that the writ be issued against the “successors in office ” of the defendants, dii'ecting them in the future, so long as the petitioner is entitled, to award to the petitioner its proper share of said fund. In other words, the court is asked, in advance of any neglect of duty by officers not yet elected, and who, when elected, for aught that appears, may do all that the petitioner may ask, to make a standing order that they divide this fund in compliance with the petitioner’s claim. This plainly cannot be done. There are no persons in existence to whom to direct the writ. The presumption, in the absence of proof to the contrary, is that officials charged with the performance of an official duty will perform it properly. There is no neglect of duty, therefore, which, in this class of cases, is the ground and reason for the issue of the writ.

Petition dismissed, with costs.