Opinion
Opinion Filed October 4, 1955.
Mandamus.
1. A writ of mandamus cannot be awarded where the order would be wholly nugatory.
Petition for writ of mandamus. Essex County. The petitionees demurred and answered. Petition dismissed.
Ernest E. Goodrich for the petitioners.
Arthur L. Graves and Frederick G. Mehlman for the Town of Victory and Selectmen of the Town of Victory.
Frederick M. Reed, Deputy Attorney General, for Essex County Road Commissioners.
May Term, 1955.
Present: Jeffords, C. J., Cleary, Chase and Hulburd, JJ., and Holden, Supr. J.
This is a petition for a writ of mandamus praying that the petitionees be commanded forthwith to commence work upon the highway described in the petition and to continue such work in good faith and with reasonable dispatch until such highway is put in good and sufficient repair and to plow the snow out of said highway and keep the snow plowed out of said highway in such a manner as to make travel thereon by automobile, auto trucks and other vehicles possible and for such further relief as justice may require. To this petition all petitionees demurred and answered. The case is here on the pleadings.
On January 3, 1955, the petitioners instituted proceedings under Chapter 239, V. S. 47, by giving notice to a selectman of the Town of Victory of a claimed insufficiency of the highway described in the petition by reason of the failure of the Town of Victory to remove the snow therefrom. Upon the Town's failure to act in connection with this notice, the petitioners, on January 7, 1955, made complaint to the county road commissioners, the same being served on them on January 11, 1955. The county road commissioners having disregarded the complaint so served, thereafter, on February 5, 1955, the petitioners brought their petition to this Court for a writ of mandamus as stated. On June 20, 1955, this petition was brought on for hearing.
We take judicial notice that any snow which was blocking the highway in question at the time the petition for a writ of mandamus was presented to this Court in February, 1955, had disappeared therefrom in June, 1955, when a hearing was had on the petition.
Since the snow sought to be removed no longer exists an order by this Court commanding its removal would be wholly nugatory. For this reason the writ of mandamus cannot be awarded as to that snow. Spiritual Atheneum Society of West Randolph v. Selectmen of Randolph, 58 Vt. 192, 193, 2 A 747.
Petition dismissed.