Volume 139 — Vermont Reports

<bold>1. Criminal Law — Lesser Included Offenses — Submission to Jury</bold> A defendant is not entitled to a jury instruction on a lesser offense than that charged unless the elements of the lesser offense are necessarily included within the offense charged. V.R.Cr.P. 31(c). <bold>2. Constitutional Law — Double Jeopardy — Lesser Included</bold> <bold>Offenses</bold> The mere possibility that the prosecution may seek to rely on all the elements of a lesser offense to establish a greater offense which has been charged is not sufficient to bar prosecution for the greater offense under the Double Jeopardy Clause of the Fifth Amendment. <bold>3. Statutes — Construction and Application — Plain Meaning</bold> The plain and ordinary meaning of the language of a statute is presumed to be intended, and where the meaning is plain the courts must enforce the statute according to its terms.<page_number>Page 15</page_number> <bold>4. Sexual Assault — Construction of Laws — Proof</bold> Clear legislative intent behind sexual assault statute is that the criminal nature of the conduct stems from the aggressive violation of the sanctity of the human body and the consequent destruction of the victim's self-worth, and given such intent it is incumbent upon supreme court to avoid a construction of the sexual assault statute which would increase the quantum of proof necessary to establish the physical act of violation addressed by the statute. <cross_reference>13 V.S.A. § 3252</cross_reference>. <bold>5. Sexual Assault — Instructions — Simple Assault</bold> Simple assault requires proof of bodily injury or an attempt to cause bodily injury, an element not identical to an element of sexual assault or always necessarily included in the elements of sexual assault; therefore, one charged with sexual assault is not entitled to a jury instruction on simple assault. 13 V.S.A. §§ 1023, 3252.

<bold>1. States — Sovereign Immunity — Generally</bold> An action against the state for damages for injuries resulting from governmental functions cannot be maintained without the state's consent. <bold>2. States — Sovereign Immunity — Action for Tuition</bold> Where Commissioner of Department of Social and Rehabilitation Services had legal custody of seven children placed by him in a group home in a school district with no high school and they went to a neighboring district's high school, neither district could collect tuition costs from the commissioner, as his acts were essentially governmental in character and claim against the department for tuition was barred by doctrine of sovereign immunity.<page_number>Page 51</page_number> <bold>3. States — Action Against Founded on Statute — Funding for</bold> <bold>Statute's Purposes</bold> Action for money judgment founded upon a statute providing the state make certain tuition payments could not be maintained where legislature had refused to make an appropriation of the funds necessary to make the payments. <cross_reference>16 V.S.A. § 830</cross_reference>. <bold>4. Mandamus — Grounds for Denial</bold> Mandamus did not lie to compel Commissioner of Department of Social and Rehabilitation Services to pay tuition of children he was legal custodian of, as there was no clear right in school district to relief, the duties involved were not purely ministerial, the commissioner did not refuse to act in accord with his duties and in fact performed as required by statute, and there was no appropriation of funds for the tuition. <cross_reference>16 V.S.A. § 830</cross_reference>. <bold>5. States — Sovereign Immunity — Suit for State Acts Under</bold> <bold>Allegedly Unconstitutional Statute</bold> Doctrine of sovereign immunity does not bar suit against the state grounded in acts performed under a statute claimed to be unconstitutional. <bold>6. Schools and School Districts — Tuition — Children in State's</bold> <bold>Custody</bold> Where statute provided that residence of a pupil in the care and custody of the Department of Social and Rehabilitation Services was where the pupil was placed and another statute required each school district to pay the tuition of its residents, district which had pupils in state's custody placed in a group home in the district was liable for their tuition when they were sent to a neighboring district's high school because district with the group home had no high school. 16 V.S.A. §§ 824, 1075. <bold>7. Constitutional Law — Vermont Constitution — Proportional</bold> <bold>Contribution Clause</bold> Test of constitutionality under state constitution's Proportional Contribution Clause is the rational basis test of the Equal Protection Clause of the federal constitution. Vt. Const. ch. I, art. 9. <bold>8. Constitutional Law — Vermont Constitution — Proportional</bold> <bold>Contribution Clause</bold> That, under statute, each school district had to pay the tuition of its residents and residency of a pupil in state's care and custody was where the pupil was placed, did not violate state constitution's Proportional Contribution Clause on the theory that it cast a heavier burden on districts with group homes in which pupils under state's custody were placed, while the public in general was benefited, for the burden on the districts with group homes was reasonably related to the purpose of treating the pupils as normal residents of the community. Vt. Const. ch. I, art. 9; 16 V.S.A. §§ 824, 1075.<page_number>Page 52</page_number> <bold>9. Constitutional Law — Educational Systems — Tuition</bold> That statutory scheme for payment of tuition of pupils in state's care and custody and placed in group homes by state was not the best possible arrangement, as recognized by legislature when the scheme was amended, did not make it unconstitutional.

<bold>1. Habeas Corpus — Existence of Other Remedy — Constitutional</bold> <bold>Rights</bold> Though habeas corpus is not generally available as a substitute for appeal or for the correction of errors of law, an exception is recognized where there has been a deprivation of fundamental constitutional rights, and mother's claim that statute probate court used to appoint a guardian for her child in proceedings mother did not appeal was unconstitutionally vague in violation of due process and that the statute was totally lacking in procedural safeguards in violation of due process fell within the exception. <cross_reference>14 V.S.A. § 2645</cross_reference>(2). <bold>2. Constitutional Law — Due Process — Statutory Vagueness</bold> A statute violates due process and is invalid if it imposes a burden on the exercise of a person's liberty for failure to conform<page_number>Page 57</page_number> his conduct to a standard that is so vague and indefinite that no one could know what it is; this safeguard serves the important values of fair warning of prohibited conduct, protection against impermissible delegation of basic policy matters, and protection against the inhibition of the exercise of constitutional rights. <bold>3. Constitutional Law — Due Process — Family Matters</bold> The freedom of parents and children to relate to one another in the context of the family free of governmental interference is a liberty interest protected by the Due Process Clause. <bold>4. Constitutional Law — Due Process — Statutory Vagueness</bold> Vague standards in statutes may be saved from a finding of unconstitutionality under the Due Process Clause if the needed specificity has been supplied by the supreme court. <bold>5. Constitutional Law — Due Process — Family Matters</bold> A parent has a fundamental right to custody and control of his child, which can be defeated only upon a showing that the child has been abandoned or abused, or that it is without proper parental care or subsistence, education, medical, or other care necessary for its well-being. 33 V.S.A. § 632(a)(12). <bold>6. Constitutional Law — Due Process — Juveniles</bold> Statute providing for appointment of a guardian for a minor where the parent is shown to be unsuitable to have the minor's custody is not so vague, in using the "suitability" standard, as to violate due process, in view of the saving interpretation given to suitability by supreme court. <cross_reference>14 V.S.A. § 2645</cross_reference>(2). <bold>7. Constitutional Law — Due Process — Juveniles</bold> Where state granted appointment of a guardian for parent's child, on ground parent was unsuitable to have custody and control of the child, parent was entitled to notice, to an opportunity to present evidence, to be faced with and hear the witnesses giving evidence against her, to cross-examine the witnesses, and to have the findings predicated upon the evidence, and where there was no record on appeal of the evidence presented and lower court failed to state its reasons for finding the parent unsuitable, there was no fundamental fairness and the judgment would be reversed and the case remanded for a new hearing. <cross_reference>14 V.S.A. § 2645</cross_reference>(2).

<bold>Appeal and Error — Motion To Withdraw Plea — Plea of Guilty</bold> Direct appeal did not lie to challenge voluntariness of guilty plea where there was no motion to trial court for withdrawal of the plea and a denial of the motion, and appeal would be dismissed and judgment affirmed, but stay of execution would be continued for 30 days, with leave for defendant to move below for withdrawal of the plea. V.R.Cr.P. 11(c)(4), 32(d).

<bold>1. Criminal Law — Jurisdiction of Offenses — Territorial</bold> <bold>Application of Law</bold> A state's penal laws are enacted as an exercise of sovereignty and are thus restricted in their application to places within the boundaries of the state. <bold>2. Criminal Law — Jurisdiction of Offenses — Counseling or</bold> <bold>Procuring a Crime</bold> Where defendant was charged with counseling and procuring the burning of a house he owned in Vermont, and with intent to injure and defraud the insurer by counseling and procuring the burning of the house, and the evidence failed to establish any act of counseling or procuring committed in Vermont, all such acts having occurred in New York and Connecticut, trial court lacked subject matter jurisdiction of the offenses and convictions on both charges would be reversed. 13 V.S.A. §§ 2, 502, 506. <bold>3. Criminal Law — Jurisdiction of Offenses — Crimes Committed</bold> <bold>Partly Outside the State</bold> Where, while outside the state, defendant counseled and procured the burning of a house he owned in the state, and did no counseling or procuring in the state, but, knowing the house would be burned, removed certain personal property and substituted other property of lesser value, trial court did not have jurisdiction of charges of counseling and procuring the burning, and counseling and procuring the burning with intent to defraud insurer, under statute providing that one who does an act in the state with intent to commit a crime and in execution or part execution of such intent, which culminates in the commission of a crime in or out of the state, shall be punished for such crime in the state in the same manner as if the crime had been committed entirely within the state; the statute does not apply unless the act within the state is so related to the crime that if nothing more had followed the act would have amounted to an attempt, and the switching of personal property<page_number>Page 96</page_number> did not constitute an attempt to commit either of the charged crimes. 13 V.S.A. §§ 2, 502, 506.

<bold>Landlord and Tenant — Rent and Lease Agreements — Assignments</bold> When a lease requires landlord's consent to assignment by lessee the landlord has the right to withhold consent to assignment, even if arbitrarily.

<bold>1. Sales — Conditional — Repossessions</bold> Where a conditional vendor of property repossesses it and sells it other than in accordance with statute governing the matter, the damage to the conditional vendee is the value of the property at the time of taking less the amount then remaining due under the contract of sale, and where those amounts cancel each other out the vendee suffers no actual damages and punitive or exemplary damages cannot be granted, as they may be awarded only where liability for actual damages is established. <bold>2. Sales — Conditional — Repossessions</bold> Where Ford Motor Credit Company repossessed auto for nonpayment under its financing agreement and under its repurchase agreement transferred the auto to the dealer who had sold it, and dealer sold the auto on and for its own account, credit company, not having caused or made the sale, was not liable for premature sale when the auto was sold on the last day buyer had for redemption. 9A V.S.A. § 9 — 504. <bold>3. Words and Phrases — Time</bold> Under statute providing that "when time is to be reckoned from a day, date or an act done, such day, date or day when such act is done shall not be included in the computation, unless otherwise provided," day of repossession of auto was not properly included in time during which it could be redeemed. <cross_reference>1 V.S.A. § 138</cross_reference>. <bold>4. Notice — Repossession Sales</bold> Notice to purchaser of repossessed auto, that it would be sold at a private sale "at any time after 10 days from the date shown<page_number>Page 163</page_number> above unless redeemed by you prior to that date," was not defective for failure to specify the exact day for expiration of the redemption period, where statute required "reasonable notification of the time after which any private sale or other intended disposition is to be made." 9A V.S.A. § 9 — 504. <bold>5. Trover and Conversion — Conversion — Repossessed Property</bold> Where auto dealer gave purchaser notice of intention to sell repossessed auto, and dealer wrongly included day of repossession in period during which purchaser could redeem, selling the auto on what dealer considered to be the day after the end of the redemption period, and due to dealer's error that day was actually the last day for redemption, dealer was liable for damages. 9A V.S.A. § 9 — 504.

<bold>1. Dismissal and Nonsuit — Hearing — Right to</bold> Where trial judge dismissed claim and counterclaim on his own motion on ground that neither stated a cause of action, and did not give the parties notice of the hearing at which he ordered dismissals, or hear the arguments of the parties, reversal and remand to give defendant-appellant an opportunity to be heard was necessary, though plaintiffs could not have review on remand as they did not appeal the dismissal. V.R.C.P. 12(b)(6). <bold>2. Malicious Prosecution — Filing Claim</bold> Action in the nature of vexatious litigation could not arise as a result of appeal by defendant claiming suit below against him was malicious and intended to harass him, but must be brought as an original action below.

<bold>1. Contracts — Implied Contracts — Receipt of Benefits</bold> Under quasi contract theory the law raises a promise that one will pay when he receives a benefit which it would be inequitable for him to retain, a fictitious promise which exists without regard to, and indeed sometimes contrary to, the intentions of the party bound by the promise. <bold>2. Contracts — Implied Contracts — Voluntary Acts and Payments</bold> A person is a volunteer with respect to a payment he makes if he is under no obligation to make it or if no interest of his own is protected by the payment, unless the payment is made because of an honest mistake of fact or law as to the obligation to pay or the interest to be protected. <bold>3. Contracts — Implied Contracts — Receipt of Benefits</bold> Where purchaser of land at tax sale paid the taxes for the year of purchase and delinquent taxpayers redeemed the land, purchaser was not a volunteer with respect to his tax payment as he was protecting his own interest in the property, and as taxpayer-redeemers would be unjustly enriched if they failed to reimburse purchaser for his tax payment, judgment for purchaser in the amount of the payment was proper.

<bold>Taxation — Income — Calculation of Federal Tax Liability</bold> Where federal law allowed a partial income tax credit for wages paid certain new employees, but to the extent of the credit taken disallowed the deduction for wages paid, and taxpayer claimed a new jobs credit on his federal return, but in determining Vermont income tax liability (defined as 25 percent of federal tax liability) taxpayer calculated his federal tax liability as if he had not claimed any new jobs tax credit and had claimed the full deduction<page_number>Page 286</page_number> for wages paid, thereby reducing his Vermont tax liability, taxpayer followed a permissible procedure and could not be assessed by Vermont for the amount of the reduction, for Vermont definition of federal income tax liability for Vermont income tax purposes was "federal income tax . . . before the allowance of any . . . credit against that liability." (Overruling <italic>F. W. Woolworth</italic> v. <italic>Commissioner of Taxes,</italic> <cross_reference>130 Vt. 544</cross_reference>, <cross_reference>298 A.2d 839</cross_reference> (1972), to the extent that it is inconsistent with decision in instant case.) <cross_reference>32 V.S.A. § 5823</cross_reference>(a)(5).

<bold>1. Receiving Stolen Goods — Elements — Common Law</bold> Court would look to common law for guidance where statute did not define charged crime of receiving stolen property. <cross_reference>13 V.S.A. § 2561</cross_reference>.<page_number>Page 306</page_number> <bold>2. Receiving Stolen Goods — Elements — Common Law</bold> Common law elements of receiving stolen goods are knowledge that the goods were stolen and receiving them with unlawful intent. <cross_reference>13 V.S.A. § 2561</cross_reference>. <bold>3. Criminal Law — State's Burden of Proof — Elements of Offense</bold> State must prove beyond a reasonable doubt all essential elements of a charged crime. <bold>4. Criminal Law — State's Burden of Proof — Elements of Offense</bold> A superabundance of evidence supporting one element of a crime will not suffice to excuse state from meeting its burden of proving the other essential elements. <bold>5. Receiving Stolen Property — Elements — Receipt</bold> Stolen property is "received" by acceptance of possession by delivery, and by implication, receiving involves a transfer from one person to another. <cross_reference>13 V.S.A. § 2561</cross_reference>. <bold>6. Receiving Stolen Goods — Elements — Receipt</bold> The crimes of receiving stolen goods and larceny are inconsistent, and a thief cannot be guilty of receiving property he stole. <cross_reference>13 V.S.A. § 2561</cross_reference>. <bold>7. Criminal Law — Guilt or Liability — Presumptions and</bold> <bold>Inferences</bold> Inferences can serve to support a jury's findings of guilt of a crime beyond a reasonable doubt only if there is a logical and convincing connection between the established facts and the inferred conclusion. <bold>8. Criminal Law — Guilt or Liability — Presumptions and</bold> <bold>Inferences</bold> Where state's evidence in prosecution for receiving stolen property rested on a chain of inferences, supreme court had to decide on appeal of conviction whether the proved facts logically supported the inferences. <cross_reference>13 V.S.A. § 2561</cross_reference>. <bold>9. Receiving Stolen Goods — Presumptions and Inferences — Illegal</bold> <bold>Receipt</bold> There was no evidence to support inference accused received stolen property as charged, and all inferences to be drawn from the facts indicated he either found or stole the property, and conviction would be reversed and judgment of not guilty entered, where accused was apprehended by police responding to store's burglar alarm, had run from police, had two cameras one of which had store's price tag, store had a broken window with traces of blood and a broken case with two cameras removed, accused had at time of arrest a cut hand with fresh blood, and accused claimed he had been near the store, heard glass breaking, investigated, saw two males run from rear of store and get into an auto and leave, found the broken window and saw a camera inside the store and one outside the store, and took them knowing they were stolen and intending to take them to the police. <cross_reference>13 V.S.A. § 2561</cross_reference>.<page_number>Page 307</page_number>

<bold>1. Kidnapping — Elements of Offense — Confinement</bold> Defendant charged with sexual assault and kidnapping and convicted only of kidnapping was properly denied acquittal sought on theory that the confinement was merely incidental to the sexual assault; the kidnapping, if proven in every element, could stand on its own. <cross_reference>13 V.S.A. § 2401</cross_reference>. <bold>2. Appeal and Error — Motion for Judgment of Acquittal — Tests on</bold> <bold>Review</bold> The standard for review of denial of motion for acquittal is whether the evidence, viewed in the light most favorable to the state, reasonably supports finding of guilt beyond a reasonable doubt. <bold>3. Kidnapping — Elements of Offense — Particular Acts</bold> Conviction for kidnapping was more than sufficiently supported by evidence that defendant and another man offered victim a ride from train station to her school, she accepted, requested to be dropped off at school, defendant continued past that point and stopped approximately a mile further on a remote dirt road, victim again requested to be allowed to leave the auto and was refused, and both men then had sexual intercourse with her and then dropped her off at the school. <cross_reference>13 V.S.A. § 2401</cross_reference>. <bold>4. Kidnapping — Elements of Offense — Confinement</bold> Defendant could be found guilty of kidnapping and not guilty of sexual assault upon the victim without any inconsistency in the verdicts; unanimity of jurors as to victim's being held against her will would not prevent one or more of them from doubting that she did not consent to the intercourse. <cross_reference>13 V.S.A. § 2401</cross_reference>.

<bold>1. Public Utilities — Rates — Classifications</bold> Under telephone company's residential customer tariff providing that additional listings are confined to the names of those who are entitled to use the customer's service, business trade name was not within the category of those "entitled to use" the service, as only the residence's customers and household members could use the service, and part-time crafts shop owner operating out of his home, who used his phone primarily for residential purposes and wanted an additional white page listing for his trade name, would have to reclassify his residential phone to business service and pay the additional business listing rate. <bold>2. Public Utilities — Rates — Classifications</bold> It was not within province of supreme court to pass judgment on telephone company tariff or remedy whatever anomaly may have existed where customer using his phone primarily for nonbusiness purposes was forced to pay additional business rate if he wished an additional listing for a business trade name, as rate schedules on file with Public Service Board become lawful rates which remain in force until changed in the manner prescribed by statute. <bold>3. Courts — Supreme Court — Advisory Opinions</bold> Where unfair trade practice claimant had no standing to raise the issue as he had not been affected by the practice, action on the claim would be an advisory opinion, which court would not grant.

<bold>1. Unemployment Compensation — Employment Termination — By</bold> <bold>Employee Without Good Cause</bold> Where employee and Commissioner of Department of Labor and Industry met and mutually concluded that it would be best for all parties if employee's employment ended, commissioner had previously been advised by Department of Personnel that he had insufficient grounds to discharge employee, with whose work commissioner was dissatisfied, and employee submitted a written resignation in which he confirmed that he was quitting by mutual agreement, evidence did not support conclusion of Employment Security Board that the termination was not voluntary and was coerced by employer, and supreme court would conclude that employee voluntarily quit without good cause attributable to employer and was thus disqualified from unemployment compensation benefits. <cross_reference>21 V.S.A. § 1344</cross_reference>(a)(2)(A). <bold>2. Unemployment Compensation — Judicial Review — Findings</bold> Although supreme court will not disturb the findings of the Employment Security Board unless, considered as a whole, there is no evidence to support the decision, the conclusions of the board must be supported by the facts.

<bold>1. Appeal and Error — Findings — Tests for Overturning</bold> Supreme court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, they are clearly erroneous. <bold>2. Release — Avoidance</bold> Although supreme court generally favors contractual agreements between parties to a divorce proceeding and encourages them to fashion mutually satisfying resolutions, where husband ordered by divorce judgment to pay alimony and child support drew up a release and repeatedly contacted wife and demanded her concurrence in the release, thereby causing great stress, wife was without the benefit of legal counsel, and wife indicated at trial on her contempt claim for nonpayment of alimony and support that she did not understand the effect of the release when she signed it, it was not error for trial court to find wife was coerced into signing and that there was no release. <bold>3. Divorce — Alimony — Arrearages</bold> Where trial court found that $18,425 arrearage by husband under-court order to pay alimony and child support was reasonable and permitted execution to issue, supreme court would not disturb the finding. <cross_reference>15 V.S.A. § 760</cross_reference>. <bold>4. Estoppel — Equitable — Defenses Against</bold> Husband who used unconscionable methods to secure document from wife releasing him from obligations under divorce decree could not successfully claim equitable doctrine of promissory estoppel based on wife's delay in attempting to collect alimony and support from him.

<bold>1. Extradition — Requisition Papers — Sufficiency</bold> Where Arizona did not, in seeking extradition of a person not indicted or convicted, provide an affidavit of the prosecuting officer to the facts of the alleged crime, or an affidavit executed before a magistrate in Arizona, extradition could not be had and habeas corpus would be granted; and neither investigating officer's affidavit before a notary, nor person's waiver of right to a preliminary hearing on probable cause, could supply the deficiency and be considered a substitute for a proper affidavit. <cross_reference>13 V.S.A. § 4943</cross_reference>(a). <bold>2. Extradition — Review of Proceeding — Elements</bold> On habeas corpus review of extradition demand, Vermont's inquiry should not include examination of demanding state's laws or judicial proceedings; review is limited to examination of whether the extradition documents satisfy Vermont law. <cross_reference>13 V.S.A. § 4943</cross_reference>.

<bold>1. Constitutional Law — Police Power — Nature and Extent</bold> State's police power is not limitless, even though it be but another name for sovereignty itself.<page_number>Page 344</page_number> <bold>2. Eminent Domain — Taking — Damage to Property</bold> Permanent physical damage to property to the point of depriving the owner of its beneficial use constitutes a taking. <bold>3. Eminent Domain — Compensation for Loss — Water Loss</bold> Where state admittedly rendered plaintiffs' well unfit for use by its (nonnegligent) salting of road to de-ice it, plaintiffs were entitled to recover their loss and to judgment for the stipulated $2,500 damage.

<bold>Process — Service — Agents</bold> German auto manufacturer's designation of United States national distributor of its autos as agent for service of process pursuant to federal Motor Vehicle Safety Act requiring such designation did not authorize national distributor to accept process in actions against manufacturer not arising out of the federal act. 15 U.S.C. § 1399(e); V.R.C.P. 4(d)(7).

<bold>1. Property — Option To Buy — Nature and Elements</bold> The essence of an option to purchase is that it must be accepted according to its terms if it is to generate a binding contract, and in absence of contrary language in the option the time for delivery is a reasonable time after acceptance of the offer, and the offer is taken to be for cash on delivery and before title passes.<page_number>Page 362</page_number> <bold>2. Property — Option To Buy — Acts Not Constituting Exercise</bold> Where plaintiffs had an option to purchase land from defendant and sent defendant's attorney a letter saying they would like to work out something with defendant with respect to acquisition of the land and discuss financing, the letter was not an unconditional acceptance according to the terms of the option, did not look to an offer of cash upon delivery of the deed, and did not constitute exercise of the option. <bold>3. Property — Right of First Refusal — Nature and Elements</bold> A right of first refusal with respect to purchase of land in effect becomes an option to purchase when a prospective purchaser appears and is ready, willing and able to purchase, and the right is thus subject to the same rules as an option with regard to performance according to its terms. <bold>4. Property — Right of First Refusal — Acts Not Constituting</bold> <bold>Exercise</bold> Right of first refusal with respect to purchase of land was not exercised where seller sent holders of the right notice of a bona fide offer for a certain amount and holders replied with a letter stating that they had already validly exercised an option to purchase the land, a claim that was in dispute, and not mentioning the fact that the land was now being offered under the right of first refusal.

<bold>1. Administrative Law — Discretionary Rulings — Limitations</bold> In the law, discretionary rulings are always subject to the limitations that discretion not be withheld or abused, with abuse defined as the exercise of discretion on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. <bold>2. Administrative Law — Judicial Review — Discretionary Rulings</bold> In determining the application of limitations to discretionary rulings made under authority of a statute, the statutory objectives are of first consideration, and as the use of the discretionary power is limited by those objectives, a review of the exercise of the discretionary power must reach the question whether those objectives were sufficiently taken into account.<page_number>Page 377</page_number> <bold>3. Environmental Law — Land Use and Planning — Parties</bold> Where environmental commission had discretion to give Barre City notice of proposed real estate development in Barre Town, which would give Barre City party status, and did not do so, and city appealed as it wished to raise questions regarding water supply and sewage, which it supplied to town, failure to give city notice was not an abuse of discretion, as the town obtained its water and sewage from city by contract, the limits of the contracts were all the protection the city needed, and it was of no concern to the city how the town distributed its limited water and sewer rights under the contracts among the town's customers. <cross_reference>10 V.S.A. § 6084</cross_reference>(b). <bold>4. Environmental Law — Land Use and Planning — Parties</bold> Environmental commission and board did not abuse their discretion in denying city's request under rules for party status in hearing on proposed development where the request was four months late, came after considerable progress had been made in the hearing, the city's agents could be called as witnesses by the parties to the hearing, no compelling reason for waiver of time limit for the requesting of party status appeared, and great delay and expense would result to others if party status were granted under rule. <cross_reference>10 V.S.A. § 6084</cross_reference>. <bold>5. Appeal and Error — Questions Considered on Appeal — Issues Not</bold> <bold>Timely Presented on Appeal</bold> Issue not central to questions of the case and not timely presented would not be considered on appeal by supreme court.

<bold>1. Appeal and Error — Record — Stipulations</bold> Where parties to appeal stipulated that no transcript was required, and case was tried on an agreed statement, party was bound by stipulation and could not assert factual claims whose inclusion, or admission into evidence, could have otherwise been insisted upon. <bold>2. Insurance — Beneficiary — Equitable Interest</bold> Claim of second beneficiary on life insurance policy, a volunteer, which was supported only by the fact of the change of beneficiary and whatever unproven equitable interests could be claimed to arise from meretricious relationship between claimant and decedent, could not prevail over claim and equities of minor children of decedent, who had been designated beneficiaries on policy pursuant to stipulation in judgment of divorce, under the terms of which, in consideration of the maintenance of the policy for the children and other actions, the decedent was relieved of the obligation of further child support.

<bold>1. Unemployment Compensation — Eligibility — Burden of Proof</bold> The burden is on the claimant for unemployment compensation benefits to substantiate his claim. <bold>2. Unemployment Compensation — Judicial Review — Scope of Review</bold> In reviewing an appeal from a decision of the Employment Security Board, the Supreme Court must determine whether the evidence before the Board reasonably tends to support its findings and whether the findings in turn support the Board's conclusions and decision. <bold>3. Unemployment Compensation — Employment Termination — By</bold> <bold>Employee Without Good Cause</bold> A dispute arising between employer and employee over a matter totally unrelated to the employment relationship, and which antedated that relationship, does not give rise to good cause, attributable to the employing unit, for the employee to voluntarily quit and collect benefits. <cross_reference>21 V.S.A. § 1344</cross_reference>(a)(2)(A).

<bold>1. Public Utilities — Rate Increases — Recoupment</bold> Under statute providing that if Public Service Board orders that a proposed rate change not go into effect pending a final determination, it shall proceed to hear and determine the matter within six months of the proposed effective date of the proposed change and further providing that proposed rate changes may be put into effect under an approved repayment bond, once a bond is filed, the board has no further authority to suspend the operation of the proposed rates, but the company proposing the rates is not required to post a bond or forever forego its right of recoupment provided for under the statutory provision governing proceedings upon suspension of proposed rate changes generally. 30 V.S.A. §§ 226(b), 227.<page_number>Page 579</page_number> <bold>2. Public Utilities — Rate Increases — Suspension</bold> Under statutes providing for suspension of proposed rate changes, pending final determination, upon order of Public Service Board and further providing for immediate implementation of the proposed rates upon filing of an approved repayment bond, the order of suspension of the board continues in effect unless suspended by the filing of a bond. 30 V.S.A. §§ 226(b), 227. <bold>3. Public Utilities — Rate Increases — Recoupment</bold> Where proposed rate increases, filed in January of 1974 and June of 1975, and effective in February of 1974 and July of 1975, respectively, were suspended by entry of an order by the Public Service Board pursuant to its statutory authority to suspend proposed rate changes and remained suspended until entry of an order of recoupment by the board in August of 1980, allowing recovery on the basis of the proposed rate increases, the statutory right of recoupment of proposed but suspended rate increases applied as a matter of law, subject to orders providing allowance for intervening economic change, to the period from the suspension of the proposed rate changes, which was accomplished within 30 days of the proposal, until final determination by the board in 1980 rather than to the period between the date of filing and effective date of the proposed rate change. 30 V.S.A. §§ 226(b), 227. <bold>4. Public Utilities — Rate of Return — Reasonableness</bold> Rates cannot be arbitrary or capricious; they must be just and reasonable. <bold>5. Public Utilities — Rate of Return — Determination</bold> In every rate case there is left a reasonable margin of fluctuation and uncertainty. <bold>6. Public Utilities — Rate of Return — Determination</bold> Where Public Service Board increased monthly allowance for directory assistance calls without charge from three to five, and the evidence offered by utility, which was contradicted, in opposition to change indicated difference in suppression effect between three-call and five-call allowance of only six percent, with the amount varying greatly from area to area, decision of board fell within "reasonable margin" of uncertainty. <bold>7. Public Utilities — Rate of Return — Determination</bold> Although the board cannot order an increase in rates for interstate calls from a Vermont pay station, costs associated with such calls should be allocated to them, and not made the basis for intrastate rates, either local or long distance.

<bold>1. Pleading — Defenses — Lack of Personal Jurisdiction</bold> Where an issue, based upon a claimed lack of authority to accept service, involves jurisdiction over the person, it is waived if not made by inclusion in a responsive pleading or in a motion. V.R.C.P. 12(h)(1).<page_number>Page 592</page_number> <bold>2. Appeal and Error — Remand — Lack of Basis for Decision</bold> Where defendants requested that the cause should be remanded but the court was not told why this should be done and it was not indicated below, absent such a showing there could be no hope of prevailing on the merits.

<bold>1. Evidence — Circumstantial Evidence — Instructions</bold> Even if all the evidence on the issue of intent were circumstantial, this alone would not require that any special instruction be given to the jury. <bold>2. Criminal Law — State's Burden of Proof — Generally</bold> The requirement that the State must prove all the elements of a crime beyond a reasonable doubt is the standard of proof in a criminal case, whether the State's evidence is circumstantial or direct. <bold>3. Criminal Law — Intent — Effect of Intoxication</bold> When specific intent is an element of a crime, evidence of either voluntary or involuntary intoxication may be introduced to show that the defendant could not have formed the necessary intent. <bold>4. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> The failure to raise an objection in the trial court constitutes a waiver of the claim of error. <bold>5. Appeal and Error — Preservation of Questions — Questions Not</bold> <bold>Preserved But Considered</bold> The supreme court will consider a claim not raised below only if it constitutes glaring error. <bold>6. Trial — Instructions — Generally</bold> It is always necessary to consider the charge to the jury in its entirety. <bold>7. Common Law — Duty To Aid Person in Danger</bold> As a general rule, there is no duty under the common law to aid a person who is in danger. <bold>8. Statutes — Construction and Application — Generally</bold> The Duty to Aid the Endangered Act does not create a duty to intervene in a fight. <cross_reference>12 V.S.A. § 519</cross_reference>(a). <bold>9. Trial — Instructions — Generally</bold> Trial court did not err when, in prosecution for attempting to cause serious bodily injury, it instructed jury that a bystander has no legal duty to stop a fight, since the instruction was not incorrect as a matter of law and could have had little effect on argument of defense that a reasonable person would have intervened in a<page_number>Page 639</page_number> beating if defendant had actually been attempting to inflict serious harm.