
    Miriam Welton and Jean (Eugene) Pagano v. Town of Brandon, Allen J. Davis, Sidney Rosen and Cecil Goodheart
    [313 A.2d 676]
    No. 215-73
    Present: Shangraw, C.J., Barney, Keyser and Daley, JJ., and Barrow, Supr. J.
    Opinion Filed December 26, 1973
    
      Richard J. Wright, Esq., Poultney, for Plaintiffs.
    
      Hanford G. Davis, Esq., Brandon, for Defendants.
   Shangraw, C.J.

At the animal town meeting held on March 5, 1973, the voters of . the Town of Brandon voted, pursuant to the provisions of 24 V.S.A. § 714, to increase the size of their Board of Selectmen from three (3) to five (5) • members. At that time no. individuals were elected to fill the two additional vacancies. ■

On May 30, 1973, plaintiffs delivered to the defendants, at a regular meeting of the Board of Selectmen of the Town of Brandon, a petition signed by at least five (5) per cent of the legal voters of the Town of Brandon requesting the Board of Selectmen to call a special town meeting “to see if the town would vote to elect two selectmen to serve until March, 1974.”

The petition complied with the provisions of 24 V.S.A. § 705(a), which in part provides as follows:

(a) The selectmen may warn a special town meeting when they deem it necessary and shall call such meeting on the application of 5% of the voters ....

24 V.S.A. § 963 requires “that in the event of more than one vacancy on the Board of Selectmen at the same time, such vacancies shall be filled by a special town meeting called for that purpose.”

The selectmen having failed and neglected to warn for the requested special town meeting, plaintiffs, legal voters of the Town of Brandon, brought a complaint against the defendants seeking an order directing them to call a special town meeting for the purpose of electing two selectmen to serve until the annual town meeting to be held in March, 1974.

The matter came on for hearing before the Rutland County Court on July 2, 1973. Findings of fact and conclusions of law were issued on August 24, 1973. The court therein determined that the town meeting held in March, 1973, had authorized the election of two additional selectmen, and that 24 V.S.A. § 963 required that the two vacancies be filled by a special town meeting promptly called for that purpose; otherwise the will of the voters of the Town of Brandon would be frustrated. The court also concluded that the selectmen elected at the special town meeting would serve until the next annual meeting.

The findings and conclusions of law, which so far as here are material, were followed by an order reading:

It is hereby Ordered, Adjudged and Decreed that the defendants, Allen J. Davis, Sidney Rosen and Cecil Good-heart, convene immediately as a body, and, acting as the Board of Selectmen of the Town of Brandon, Vermont, determine a date certain for the holding of a special town meeting to consider the proposal submitted to them on May 30, 1973, in the petition referred to in Paragraph 2 of the Findings above, prepare a proper warning for such special town meeting, and take all such steps as are necessary to insure that such meeting shall be held.

The defendants have appealed to this Court for review.

The provisions of 24 V.S.A. §§ 705(a) and 963 are controlling under the facts presented. The petition which was presented to the Selectmen of the Town of Brandon on May 30, 1973, by at least five (5) per cent of the legal voters of the Town of Brandon requesting the selectmen to call a special town meeting to elect two selectmen to serve until March, 1974, was authorized under the statutes. Upon such presentation it then became the duty of the selectmen to promptly comply with the request.

The judgment order of the lower court is affirmed subject to the following amendment and mandate from this Court that the selectmen shall legally warn and call a special town meeting for the Town of Brandon at the earliest possible date to elect two selectmen, which shall be consistent with the statutory provisions governing the holding of such special town meeting. This entry and mandate shall issue forthwith.  