Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019

Ruminations constitutional takings, and prize Article 2 (compensation for taking private property for public purposes) over Article 5 (police power). Categorizing judges and justices by these criteria is risky. Louis Peck was a con- servative, as shown by his dissents. But try- ing to classify other judges and justices of- ten defies us. Decisions are based on prec- edent, statute, the constitution, and legal ideas, under specific facts, and there is usu- ally little room for discretion. 12 How can we really know Sherman Rob- erts Moulton? We have his decisions, and we have a few other facts. We know he was born in Burlington in the house that John Dewey lived in before him. His father was a banker who owned a stock farm in Ran- dolph that made “butter of great perfec- tion,” that won a gold medal at the Paris Exposition of 1889 and another at the 1893 Chicago World’s Fair. 13 We know Sherman Moulton promised 30 Revolutionary War era drums to the Vermont Historical Soci- ety in 1915. 14 We have his book, The Boorn Mystery (1937), a defense of the Vermont Supreme Court’s actions in the murder convictions of two brothers accused of kill- ing another, notorious in Vermont judicial history for the arrival of the victim short- ly before one of the brothers was to be hanged. 15 Moulton was a graduate of Har- vard Law School. In a book published to honor the graduates of the school, he in- cluded his score on the bar exam (95.28, to be precise) in his biography. 16 As Report- er of Decisions, he was the one to remove the synopsis of attorneys’ arguments from Vermont Reports, a long-standing prac- tice of the court. These details tell us noth- ing about his politics or his judicial views. If there are revelations of a conservative temperament, they would appear in the opinions of the court that he authored, and those he joined. Sherman Moulton’s years on the court saw many changes and challenges for Ver- monters and the world, including the 1927 flood, the 1929 Wall Street Crash and the depression that followed, prohibition, and World War II. In his years as a judge or jus- tice, women were given the right to vote and serve on juries, motor vehicles re- placed horses, radio became omnipresent, and FDR brought on the New Deal. The first federal laws that Roosevelt sponsored to respond to the depression were struck down by the Supreme Court. These deci- sions defined conservative judicial thinking. Judicial Review FDR was frustrated by the rulings of the Supreme Court that threatened to undo the work his administration had done to respond to the depression. The New Deal 14 and the recovery were threatened. His an- swer was to expand the court, which nearly came to pass, had Justice Owen Roberts not changed his position and begun voting with the court’s more liberal members (the “switch in time saved nine”). 17 During the mid to late 1930s, this judi- cial crisis would have been a subject no jus- tice or judge could ignore. It would have been talked about over a justice’s dinner table and in the chambers of the court in every state, including Vermont. Every- one watched as the Supreme Court of the United States struck down elements of the New Deal, including acts for debtor relief, a poultry code, a price fixing law for agri- cultural products, a tax on coal, and a law regulating the hours women and children could work. 18 During Sherman Moulton’s years on the Vermont Supreme Court (1926-1949), his court exercised judicial review seven times to void acts or statutes, four of them based on Section 5 of the constitution, the sep- aration of powers clause. Struck were a local ordinance requiring high fees for a junk dealer license that raised revenue and allowed trustees to grant licenses on their sole discretion; a junk dealer’s ordi- nance that gave total discretion to the vil- lage trustees where a junk yard may be lo- cated; 20 a statute requiring the Supreme Court to give advisory opinions to the leg- islature; 21 and a law allowing the allocation of flood control project funds. That was Vil- lage of Waterbury v. Melendy (1941), which left the apportionment decision to the Board of Public Works and the Public Ser- vice Commission. Justice John S. Buttles wrote the decision for the court, and fault- ed the law for failing to include standards for the apportionment of expenses. How are the benefits to the munici- palities to be determined? Shall it be only on the basis of probable flood protection to riparian property own- ers, thus requiring assessment of the whole town for the direct benefit of riparian owners only? Is riparian land alone to be considered, or land lia- ble to flowage on a basis of frontage, area, or value, or shall consideration also be given to the personal prop- erty of great value which is subject to flood risk in some of the towns and cities? Or is the term “benefits” to be restricted to benefits which the mu- nicipality itself, apart from its citizens, may receive, such as protection to its highways and parks and public build- ings and any lands to which it may have title? Or is the term to be given a wider application and held to include not only protection to property, but also to life of the inhabitants and in- THE VERMONT BAR JOURNAL • SUMMER 2019 tangible benefits like a greater sense of security on the part of inhabitants and sojourners, possibly tending to at- tract more business to the town? 22 The court struck down provisions of the Gross Retail Sales Act in 1935, null and void for violating Articles 1, 7, and 9 of the Vermont Constitution and the Fourteenth Amendment to the U.S. Constitution, find- ing the law arbitrary, unequal, and unrea- sonable. Retail merchants were taxed on a graduated scale, increasing in proportion to the amount of sale, varying from one- eighth of one percent to four percent. 23 The court also found a statute requiring those convicted of intoxication to disclose the names of the sellers of the drinks violat- ed Article 10 (self-incrimination). 24 In eight cases during Moulton’s tenure, the Vermont Supreme Court found laws or acts not unconstitutional, including a stat- ute that imposed penalties on a decedent’s estate for failure to list intangibles for tax- ation (proportional contribution and equal protection not offended); 25 a change in the law on gaming machines that revoked all existing licenses (authorized by the police power); 26 a law that prohibited billboards on highways (a proper and constitutional exercise of the government’s right to regu- late the use of highways; police power); 27 the non-exemption of municipal electric plants located outside of the town (no of- fense to the constitutional guarantee of Ar- ticle 9); 28 an act that appropriates money not in the state treasury at the time the ap- propriation is made (again, Article 9 not triggered); 29 the acts of a town grand juror who also served as a referee in bankruptcy (although the constitution was violated by dual office holding, his acts are valid under the de facto officer rule); 30 the price-fixing provisions of milk regulation; 31 and the stat- ute appraising corporate stock for taxation (no usurpation of judicial power, no offense to due process, nor a palpably arbitrary or unreasonable classification of taxpayers). 32 In constitutional cases, the court sets a high bar. Every presumption is to be made in favor of the constitutionality of an act of the Legislature and it will not be declared unconstitutional without clear and irrefra- gable proof that it infringes the paramount law. 33 An act is never to be construed as un- constitutional if a reasonable construction can be placed upon it which will render it valid. 34 Another fertile area for discerning a jus- tice’s views are dissenting opinions. Only there will the individual justice’s voice be heard. Dissents Sherman Moulton dissented only four www.vtbar.org

Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 14