The Barre daily times. (Barre, Vt.) 1897-1959, 1912-03-04
VERMONT AND THE RECALL.
State Had Experience Along Lines Now
Suggested Elsewhere.

The state Of Vermont in its early
days had an experience with the courts
that is worth considering in connection
with Mr. Rooseyelt's proposal for the
recall OF judicial decisions. Mr.. Ronse-
welt 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 reverse the
supreme courts opinions interpreting the
constitution II interfered at almost
every point passed acts yacating, an
nulling or reversing judgments, granting
appeals from final decisions and order.
ing new trials in eases finally disposed
of by the judicial branch of the govern.
ment. Ii was not until 1924 evidently.
in the case of Bates against Kimhall,
that this interesting chapter in Ncr-
mont history was virtually closed with
the overthrow of that demoralizing form
of recall of judicial decisions.
There is little or nothing essentially
new in Mr. Roosevelt's idea, as the Yer
mont experience shows. The original
settlers Of "the New Hampshire grants. .
luton, had inherited the conception of
legislature omnipotent, so far as the iu-
dietary was concerned, and the state con.
stitution of l777 did not contemplate as
possible the exercise by the courts Of the
power to declare void an act of the leg.
islature on constitutional grounds In.
der that constitutiOn-and by the way,
Vermont was wholly independent and
was not in the union at all until 1901,
owing to the old controversy with New
York concerning the rightful jurisdiction
over the lands as far east as the Con-
necticut river-under that constitution
the Vermont legislature was a frequent
meddler in judicial affairs. Chapman, IN
his interesting preface TO the first volume
of the Vermont law reports, published
the adoption of the constitution of 1885
the legislatures have not so frequently
passed acts violating the rights OF prop
erty or vacating and annulling iudg.
ments; but they continued to grant new
trials for some years, II is believed, with
little opposition"
This legislative interference with tie
judicial powers was criticized and con
demned repeatedly by that curious Yer
mont institution, the council of ccnsors,
which was created by the constitution OF
l777 and which did not cease to exist
until the constitutional convention of
1870. This body was chosen by the peo-
pie every seven years and it held Office
for only one year. Its duty was to i'm
1uire whether the constitution had been
inviolate during the last sep
tenary and whether any of the branches
Of the government had usurped powers. !
If the censors concluded that the legis- |
lature had passed acts contrary to the |
they could recommend to |
the legislature their repeal 1t was one
Of the early councils of censors when /
forcibly pointed'out the demoralizing eff |
feet of the legislatures attitude toward |
The courts, showing particularly thai lit |
giants could never be sure whether the /
lecrees of the supreme court itself would I
not be cast aside by mere majority Of !
The single chamber of which The iegis- (
allure in Vermont was Composed ma
ority often acting ON caprice or under /
hose sinister influences which politicians
lr wealthy individuals could bring to
bear upon it.
The case OF Bates against Kmball in
1924. which is fully reported in the sec
md volume of Chapman, grew out Of the
settlement of the estate of one Barber
Bates had claim of between $500 and
5000 against it, and commission ap.
pointed by the probate court had allowed
he claim. Kimball. as administrator.
allied to appeal from the commissions
Iecision without the time limit allowed
md thus. in the courts view. the deci-
ion became final and irreversibe. But.
alter on. Kimball went to the Vermont
legislature and obtained special act
.ranting him an appeal in the ease of
he Bates claim. This act was q paIpa-
lie exercise of judicial power and the
question of the legislatures right to in
ervene was the chief point considered by
he supreme court of the state when the
ase was brought before it, The courts
ecision conceded that the Legislature had
n the past not infrequently exercised
judicial power in the same or a similar
manner, but it declared the exercise of
he power now to be unconstitutional,
cling an invasion of the principle OF an
judiciary and a usurpa.ion