The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1912-03-02
The aReeaII Of DseIsIOnsn in Vermont

ions. Mr. Roosevelt would have the
people recall them; in Vermont the
decisions were recalled by the repre-
sentatives of the people, that is, the
legislature But the Vermont legisla
ture did far more than reverse the
supreme courts opinions interpreting
the constitution. It interfered at al
most every point-passed acts vacat-
ing, annulling or reversing judgments
granting appeals from final decisions
and ordering new trials in cases fin
ally disposed of by the judicial branch
of the government. 1t was not until
1924, evidently, in the case of Bates
against Kimball that this interesting
chapter in Vermont history was virtu-
ally closed with the overthrow of that
demoralizing form of recall of judicial
decisions.
There is little or nothing essentially
new in Mr.. Roosevelts idea, as the
Vermont experience shows The or
iginal settlers of "the New Hampshire
grants" as Vermont was known be
fore the Revolution, had inherited the
conception of legislature omnipotent
81 ldl do Tue Juuliidlg Mdo NOH1fA utnf
and the state constitution of 1777 did
not contemplate as possible the eXer.
else by the courts of the power to
declare void an act of the legislature
on constitutional grounds. Under that
constitution-and, by the way, Yer
mont was wholly Independent and was
not in the Union at all until 1871 ow-
ing to the old controversy with New
York concerning the rightful jurisdic-
ton over the lands as far east as the
Connecticut river-under that consti-
tuition the Vermont legislature was
frequent meddler in judicial affairs.
Chapman, in his interesting preface
to the first volume of the Vermont
law reports, published early in the
last century, says: since the adop-
ton of the constitution of 1885, the
legislatures have not so frequently
passed acts violating the rights of
property or vacating and annulling
judgments; bu, they continued to
grant new trials for some years, it
is believed with little opposition.
This legislative interference with
the judicial power was criticized and
condemned repeatedly by that curious
! Vermont institution, the council of
censors, which was created by the
constitution Of 1777 and which did not
cease to exist until the constitutional
convention of 1870. This body was
chosen by the people every seven
years and it held Office for only one
year. It's duty was to inquire wheth-
er the constitution had been preserv.
ed inyiolate during the last scptenary
and whether any OF the branches OF
the government had usurped powers.
If the censors concluded that the leg.
islature had passed acts contrary to
the constitution they could recon.
mend to the legislature their repeal
It was one of the early councils OF
censors which forcibly pointed out
the demoralizing effect Of the legisla.
lures attitude toward the courts
showing particularly that litigants
could never be sure whether the
DEGREES Of the supreme court itself
would not be cast aside by a mere
majority of the single chamber OF
which the legislature In Vermont was
composed-a majority often acting on
caprice or under those sinister lnnu
ences which politicians or wealthy I'm
diylduals could bring to bear upon IL
The case Of Bates against Kimbal
in 1924, which is fully reported in the
second volume OF Chapman. grew ou
OF the settlement of the estate of on,
Barber Bates had a claim of be
tween $500 and 5000 against #. anc
a commission appointed by the pro
} bate court had allowed the claim
kimball as administrator, failed {,
appeal from the commissions decis
ion without the time limit allowed anC
, thus, In the courts view the decision
became final and reversible But
later on, Kimball went TO the Yer
mont legislature and obtained a spec
ial act granting him an appeal in IN,
case OF the Bates claim. This ac
was a palpable exercise OF judcia
power and the question OF the legis
latures' right TO intervene was IN,
chief point considered by the suprem,
court OF the state when the case wa.
brought before H. The courts decis
ion conceded that the legislature hat
in the past not infrequently exercise,
|. judicial power in the same or a sim
liar manner, but II declared the exer
else of the power now to be unconst
tutional. being an invasion Of the pril
ciple OF an independent judiciary am
usurpation of power not granted Il
the lawmaking body by the people 4
framing the constitution.
The decision In the case OF Rate
against Kimball has meyer been r,
versed and probably IL never will h,
The people OF Vermont themselve
had come to understand the viciou
elect OF such legislative int,yyentlo
in Judicial processes. hat had ono
been an unquestioned usage of m
legislature became obsolete and rldi,
ulous The recall OF judicial dech
ions by the representatives OF m
people had been tried and found 10 n
. incompatible with individual right
and the interests OF we'll ordered 5,
ciety. II must be the judgment {
every sobermlnded student of m
question that an attempt to have ii
dicial decisions recalled by the me-
pie themselves, instead OF by the
representatives, would prove eouall
impractioable and harmful to the 81
cial order
10 is true that Mr.. Roosevelt won
conilne the popular recall to cases /
volving an Interpretation OF the co
stitution. What he said in his Colur
bus speech was.