Walter v. Belding

24 Vt. 658

• Court: Supreme Court of Vermont
• Decided: May 15, 1853
• Status: Published

Opinion

Bt the Court, Red field, J.

We think the meeting was not properly adjourned on the 8th of March, consequently Horace L. Walter is the legal town clerk of East Haven, and it is proper the town books should be speedily restored to his custody, for the purpose of enabling him to make legal records affecting the title of lands, as well as for other purposes. The form of the proceeding is not probably such, as would commend itself altogether to an English Attorney General, as an information for a writ in the nature of a quo warranto. But as a mere rule to show cause why some appropriate remedy should not issue, is perhaps well enough. There being apparently two perfect records, farol evidence must of necessity be resorted to, to determine which is the legitimate record.

The writ of mandamus seems to us the proper remedy in the case. It might, with perfect propriety, have been supplicated by the town clerk, Walter, himself. But being done by the town agent, in behalf of the town, is no such fatal irregularity as to defeat the proceeding.

The hearing being had upon the rule to show cause, as is common, the writ of mandamus will issue in the peremptory form, in the first instance, and as this settles the rights of all concerned, the case is only retained to know whether it shall become needful to take any further steps to enforce the writ.

Peremptory writ of mandamus to issue.