Page v. McClure

Watson, J. Section 2, No. x 15, Laws of 1904, provides that a vote shall be taken by ballot at every town meeting to be held on the first Tuesday of March, 1905, and annually thereafter, upon the question, “Shall licenses be granted for the sale of intoxicating liquors in this town?” The section specifies the form of the ballot to be used for that purpose and how it shall be marked by the voter in voting “yes” or “no,” as he may desire. No specific provision is made in the Act for the counting of the ballots, nor for declaring the result, hence they are to be done according to the general statutory laws governing such duties. The “Australian ballot system,” so called, — No. 1, Laws of 1892, — has no application to any annual or special meeting of any town, city, or village held for the purpose of choosing town, city, or village officers except where the population of said town, city, or village exceeds four thousand in number; nor to any annual or special meeting in any town, city or village whose population exceeds four thousand and does not exceed eight thousand, unless such town, city, or village at its annual meeting or at a special meeting, called for that purpose, shall vote to have them so apply. V. S. 131, Section 30, Laws of 1892, became Section 130 ol Vermont Statutes. The latter section was amended by No. 4, Laws of 1902, and on that section thus amended the relators rely. But as regards the ballots within its scope, the law was made no broader than before. Indeed in this respect it is in the same language. The complaint contains no allegation showing the population of the town of Highgate. Nor was such allegation necessary (Clement v. Graham, 78 Vt. 290, 63 Atl. 146), for [88] the court will take judicial notice that by the last Federal census the town is within the class having population not exceeding four thousand: 4 Wigmore Ev. § 2577. By V. S. 2996, “The moderator shall be the presiding officer of town meetings, shall decide questions of order and make public declaration of votes passed; and when a vote declared by him is immediately questioned by seven voters present, shall poll the voters or divide the meeting, unless the town has provided some other procedure in such cases.” Sections 2983 and 2984 contain provisions whereby in towns of less than four thousand inhabitants certain officers shall be elected by ballot when required or demanded by a certain number of voters. And when a ballot is had as provided in these sections, then by section 2985, the polls shall be kept open for a specified time, and the votes shall be counted by the members of the board of civil authority present. But neither these nor any other provisions of the statute make it the duty of that board or of the members thereof to canvass and count or declare votes taken on the question of license in towns having not more than four thousand inhabitants. How it may be in towns where the population exceeds that number we do not consider. A writ of mandamus can enforce the performance of only existing duties. It can neither create new duties nor require of a public officer more than the law has made it his duty to do. Bailey v. Oviatt, 46 Vt. 627; Ex parte Rowland, 104 U. S. 604, 26 L. ed. 861. It appears from the allegations of the complaint that the defendants constitute part of the members of the board of civil authority of the town of Highgate, and were present at the annual to^vn meeting in question. It is alleged that it became and was their duty as said board legally to canvass and [89] count the ballots cast at that meeting on the question of whether the town should issue licenses, and that they assumed said duties and professed to act as said board in the canvassing and counting of the votes so cast. Whether it was the duty of the defendants as members of that board to canvass and count such votes is a question of law, consequently the allegation in the complaint in this respect is not admitted by the demurrer. The official relation of the defendants gave them no power to canvass and count these votes and they have none now. The fact that they assumed the duties and professed to act as such board in so doing, is not enough to subject them to a mandate. In this respect they stood then as now only as private individuals. Mandamus lies to compel a party to do only that which it is his duty to do without it, and to be coerced he must have the power to perform the act. Brownsville v. Loague, 129 U. S. 493, 32 L. ed. 780. Demurrer sustained, complaint adjudged insufficient md dismissed, with costs.