Windham County reformer. (Brattleboro, Vt.) 1901-1906, 1902-08-29

vania Lawyer, Vermont Boy, Says
Will Any Lawyer Who is Not in Mccullough
Pay-And So Have Said the Massachusett
and New Jersey as Well as Delaware, New
York and Vermont Courts and the Vermont
Legislature Itself-A Local Option Mar
Who Is Now Fooled, With Eyes Wide Open
Will Have Only Himself to Blame.
The exposure of the great buncc
game being attempted against the
freemen of Vermont in the promise OF
"A local option law subject to a referen
| dun has brought decided disturbance
among the one-sided misrulers of the
stye whose work increasingly every
I year has been becoming simple bunco.
/ The first effort at defense is the publ
cation Of statement that Judge
/ Wheeler has never expressed an opln-
/ ion that referendum would he uncon-
stitutional. The statement is simply
an impudent attempt to mislead in the
last days Of campaign. Judge Wheel
er has not only expressed the opinion
to me over and over again but TO many
others and has never failed to avow
his conviction. when the subject was
brought up in his presence in conver-
sation. that no law, conditioned for It's
substantive being. upon the vote OF
the people. could stand under our con
stitution and that the only way to leg
islate on the liquor question is as We
legislate on other questions.
In fact, the last time | talked with
him on the subject. as we were joking
upon my starting out on the stump,
and | told him perhaps he thought
jokingly that | was going particular
ly for repeating and enforcing his
view with regard to the Republican
promise. he said there was no need of
asking him or any other Judge or law
yer about it: the constitution was
plain. and any farmer or mechanic
could understand it a. we'll as the best
lawyer. The constitution says section
> article 3 of the Amendments that the
supreme Legislative power of the
state shall be vested lin the Senate
and House OF Representatives " When
the constitution says supreme it
means it: and meaning that, laws can
not be made conditionally or subject
to change or annulment by any other
power than itself Perhaps such a
final lodgment of power is wrong, | be
lieve it is, and that the salvation of
our institutions must come from an
infusion of democracy, including the
referendum that has worked so benef-
icently in Switzerland and Australia.
But the question here is not what
ought to be done on ultimate princi-
pies but what can be done under our
NJ II IC Fran,aI
The attempt to mislead the people
among all the shapes it is liable to take
in these last days before election in the
Is very likely TO appear in misquota-
tions from the case Of State vs.. Parker
2Gth Vermont alluded to last week
Interpretations that lawyers would be
ashamed to make before court or be
fore other lawyers but which they may
now regard as good enough Morgan
till after election. - This decision
contains several pages of what lawyers
call obiter dicta-that is, outside of
the decision, discussing and approving
the principle of the referendum, with
every word of which | agree, but which
has nothing to do with what was decid-
ed. which was simply that a referen-
dun il valid only when it refers
material. or in the words of
the Cotton Montpelier case ''neither
adds to nor detracts from statute or
again in the words of the Parker case
when it will leave the statute in full
force and effect whatever the vote of
the people.
Our supreme court has not only decid-
ed this in the Parker and Cotton cases
but the same principle is enunclated
in a case in the 23d Vermont. And
not only our supreme court and those
of Delaware and New York, as stated
last week. but those of New Jersey and
Massachusetts have decided the same
way under constitutions much less re-
than ours. The New Jersey
opinion declaring such legislation sub
ject to ratification at the polls to he a
nullity was delivered by Judge Van
Sickyl. one of the greatest of American
jurists. Mr.. Martin in some of his
speeches in the north part of the state,
and apparently until he had looked it
up. argued that Massachusetts under
like ours. had referen
dums all right and so we could. He /
did not say that the Massachusetts
likeness was in the barest possible .
provision that the legislature should .
make the laws" instead of an express !
and explicit lodgment of the supreme .
legislative power - But what he
omitted to say is that even under that
the Massachusetts SUI
0reme court has knocked out the ref
,rendum in a case involving the eX-
.ension of woman suffrage to 90 into
Effect only in the words of the Repub-
ican state platform) upon popular
'ote in favor of such law which the
,ourt declared to be absolutely "un-
and void in attempting
o delegate legislative powers back to
he people.
In fact the ascertained law on the
ubiect is that under our representa-
i've system of government not merely
bsence of clear denial but positive
provision for it is necessary to permit
he referendum. Black on Constitu-
ional Law. the highest authority and
My recently written, so lays the law
own. And as the reading public
.nows. the states that have got the
like South Dakota have had
lad do it by constitutional amendment
which our ring misrulers have carefully ,
rovided that we can't get until 1912.
If against all this array of authority,
including men like Judges Wheeler
nd Ross. and including also the leg
stature of 1852 which enacted prohibi-
ion and which after exhaustive dis Y
ussion agreed all round that referen-
um would be unconstitutional and so
ought to get round the difficulty by
.ferring mere matter of dates. which