St. Johnsbury Caledonian. [volume] (St. Johnsbury, Vt.) 1867-1919, 1912-03-20
PRESS COMMENT
The Recall OF Decisions I'm YER
mont.

DEOUOHHl
decision. Mr.. Roosevelt would have
the people recall them; in Vermont
the decisions were recalled by the
representatives of the people, that
is, the legislature. But the Vermont
legislature did far more than re-
verse the supreme courts opinions
interpreting the constitution. 1t in
terfered at almost every point
passed acts vacating, annulling, or
reversing judgments, granting APP
peals from final decisions and order
ing new trials in cases finally dis
posed of by the judicial branch of the
government. 1t was not until 1924,
evidently, in the case of Bates
against Kimball that this interest
ing chapter in Vermont history was
virtually closed with the overthrow
of that demoralizing form Of recall
OF judicial decisions.
There is little or nothing essen
TALLY new in Mr.. RooseVelts idea, as
the Vermont experience shows. The
original settlers Of "the New Hamp-
shire Grants" as Vermont was
known before the Revolution, had
inherited the conception of a legis-
Iature omnipotent, so far as the
judiciary was concerned, and the
state constitution of 1777 did not
contemplate as possible the exercise
by the courts of the power to declare
void an act of legislature on constt-
tutionaI grounds. Under that cons
titution-and, by the way, Vermont
was wholly independent and was
not in the Union at all until 1871,
owing to the old controversy with
New York concerning the rightful
Jurisdiction over the lands as far
east as the Connecticut rive--un-
der that constitution the Vermont
legislature was a frequent meddler
in judicial affairs. Chapman, in his
interesting preface to the first vol
ume of the Vermont law reports,
published early in the last century,
says: "Since the adoption of the
constitution in 1886 the legislatures
have not so frequently passed acts
violating the rights of property or
vacating and annulling judgments:
but they continue to grant new trials
for some years, it is believed, with
little opposition"
This legislative interference with
the judicial power was criticised
and condemned repeatedly by that
curious Vermont institution, the
council of censors, which was Great |
ed by the constitution of 1777 and
which did not cease to exist until
the constitutional convention or
1870. This body was chosen by the
people every seven years and 1t held
office for only one year. It's duty
was to inquire whether the consti-
tuition had been preserved inviolate |
during the last septenary and |
whether any Of the branches Of the |
government had usurped powers. |
If the censors concluded that the
legislature had passed acts contrary
to the constitution, they could re-
commend to the legislature their APP
peal. 1t was one of the early coun-
ellis of censors which forcibly point
ed out the demoraliZing effect of
the legislatures attitude towards the
courts, showing particularly that lit
igants could never be sure whether
the decree of the supreme court it.
self would not be cast aside by
mere majority of the single chamber
of which the legislature in Vermont
was composed-a majority often act
ing on caprice or under those SIMS
ter influences which politicians or
wealthy individuals could bring to
bear upon it.
The case of Bates against Kimball
in 1924, which Is fully reported in
the second volume Of Chapman,
grew out of the settlement OF the es-
tate of one Barber. Bates had a
claim Of between $500 and $500
against it, and a commission ap- ]
pointed by the probate court had
allowed the claim. Kimball as ad-
ministrator, failed to appeal from
the commissions decision without
the time limit allowed and thus in
the courts view, the decision be- {
came final and irreversible. But {
later on, Kimball went to the Yer
mont legislature and obtained a
special act granting him an appeal
in the case of the Bates claim. ]
This act was a palpable exercise Of
judicial power and the question of
the legislatures right to intervene
was the chief point considered by ;
the supreme court of the state when
the case was brought before it.
The courts decision conceded that
the legislature had in the past not {
infrequently exercised judicial pow ]
er in the same or a similar man
ner, but it declared the exercise of {
the power now to be unconstitu- :
tional being an invasion of the prin- l
ciple Of an Independent judiciary I
and a usurpation of power not gran
ted to the lawmaking body by the
people in framing the constitution.
The decision in the case of Bates
against Kimball has never been re- {
versed and probably it never will be.
The people of Vermont themselves
had come to understand the vicious !
effect of such legislative interven-
ton in judicial processes. What
had once been an unquestioned US
age Of tha legislature hapamo ObS0I-
etc and ridiculous. The recall of
judicial decisions by the representa-
tives of the people had been tried I
and found to be incompatible with ID
individual rights and the interests
of a we'll ordered society. 1t must
be the judgment of every sober ]
minded student OF the question that !
an attempt to have judicial decisions |
recalled by the people themselves. I