Gerard Couture v. Selectmen of Berkshire

Divoll, Supr. J.

(dissenting). I cannot concur in this opinion. I agree with the law as set forth in the majority opinion, but do not agree that the actions of the defendants constituted an arbitrary abuse of authority.

The duties imposed upon selectmen of a town by special statutes are numerous, and in addition they are required to have the general supervision of the concerns of the towns and to cause duties required by law of towns, not committed to the care of any particular officers, to be duly performed and executed. 24 V. S. A. § 872; Daniels v. Hathaway, 65 Vt. 247, 253, 26 A. 970, 21 L. R. A. 377.

Examination of the statutes does not reveal any section where the specific care of town property is committed to any particular officer. Therefore that must, and rightly so, be the duty of the selectmen. In addition, the findings reveal that the equipment in question in this instance is also used by the selectmen in carrying out certain specific statutory duties that *366they have in the construction, repair and maintenance of certain highways.

The duties of a town road commissioner are set forth in the majority opinion. They do not include the care and supervision or operation of the equipment.

The automobile has completely changed our town road requirements. No longer can the team of horses, dump cart, hand shovel or wheelbarrow support the burden of construction and maintenance needed to meet the requirements of modern car and truck traffic. It has been necessary for the several towns to acquire cumbersome, intricate and expensive machinery. The selectmen are authorized to purchase this machinery and bind the town financially for its purchase price, with or without the vote of the town. Kaeser v. Town of Starksboro, 116 Vt. 389, 392, 77 A.2d 831. It would be a legal fiction to give them the right to acquire needed machinery without giving them the right to preserve it. An elected road commissioner might be the best engineer and supervisor of road construction and maintenance but the poorest of equipment operators.

The selectmen in this case are not interfering with or preventing the petitioner from carrying out the duties of his office. The machinery is available to him, completely under his supervision and direction provided it is operated by a competent operator.

One of the duties of the selectmen by statute, by inference, by case law, by common sense and public policy, is the care and preservation of the property of the town. A competent operator of the expensive and intricate machinery involved here is necessary for the proper care and preservation of that machinery. The selection of the operator is judicial or quasi-judicial in nature and involves an inquiry of fact and exercise of judgment. It is not ministerial but discretionary and the disposition of it made by the officials will be binding upon the courts. Proctor v. Hufnail, 111 Vt. 365, 369, 16 A.2d 518; Glover v. Anderson, 120 Vt. 153, 156, 134 A.2d 612.

The petition should be denied.