Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 16

Ruminations
discretionary. The choices would be nec-
essarily idiosyncratic even with some crite-
ria by which to judge greatness. There are
seven of Moulton’s majority opinions that
stand out, because they state the leading
principles for certain species of cases, be-
cause they are often cited as authorities by
successor courts, and because they have
attained a certain cachet in the history of
the development of Vermont law.
Of course a written decision by a jus-
tice is not necessarily a reflection of the
judge’s own personal opinion, but an opin-
ion of the majority, and the resultant deci-
sions are not made on the basis of political
philosophy, but on the law, precedent, and
rule. But the justice is the author of the de-
cision, and it must be fair to conclude the
choices of words and principles are owned
by the writer. At some point in many cases,
the law is piled up on one side of the road
and the facts are piled up on the other, and
the court walks down the middle, usual-
ly allowing the facts to stand and, at least
in Moulton’s time on the court, allowing
the trial court’s decision on the law to re-
main unchanged as well. Affirmances were
more common than reversals in the years
Moulton served (1926-1949).
Moulton’s decision in Village of St. John-
sbury v. Aron (1930) declared a village ordi-
nance repugnant to Articles 1, 4, and 7 and
the Fourteenth Amendment, as it gave to-
tal discretion to the trustees on where junk
yards could be sited.
No rules are laid down for the guid-
ance of the trustees; they are not re-
quired to consider the personal fitness
of the applicant, the propriety and
convenience of his location or prem-
ises, or any other thing in granting or
withholding permission to carry on
the business. No regulations are pre-
scribed, the compliance with which
will entitle the applicant to receive a
license. The requirement of a fence
does not so entitle him. Whether or
not the license is to be granted lies
wholly in the discretion of the trustees
and the discretion they may exercise
arbitrarily and for personal and private
reasons.
This reasoning would come back again
as a powerful weapon against arbitrary de-
cision-making in several dozen cases. 44
In State v. Auclair (1939), the Supreme
Court affirmed the lower court’s decision
finding a man named Auclair guilty of sell-
ing milk without a license. Auclair’s de-
fense cited Articles 2, 5, 6, 7, and 9 of the
Vermont Constitution claiming the act on
which the prosecution was based was dis-
criminatory and a denial of due process, in
particular because it authorized a milk con-
16
trol board to fix minimum and maximum
retail prices. When Chief Justice Sher-
man Moulton reached the Articles 7 and 9
claims, he dismissed them quickly with the
comment that he saw no arbitrary or irra-
tional legislative classification in the facts of
the case, although the legislation treated
producers’ cooperatives and charitable or-
ganizations differently from other milk pro-
ducers. 45
“The statute itself negatives any idea of
arbitrary action by the board in this regard,
for in sec. 5 the elements of costs of pro-
duction, transportation, processing, distri-
bution and other services, the balance be-
tween production and consumption and
the purchasing power of the public, which
the board is required to take into consid-
eration in fixing just and reasonable pric-
es, are carefully enumerated.” The act had
standards.
The 1941 decision in Schirmer v. Myrick
is remembered for forcing the Communist
Party candidate for U.S. Representative off
the 1940 General Election ballot. The can-
didate had served as a notary in adminis-
tering oaths to those who signed his pe-
titions, and the Secretary of State had re-
fused to accept them for that reason. Chief
Justice Moulton agreed with the Secre-
tary. “[P]ublic policy forbids . . . one with
a financial or beneficial interest in the pro-
ceeding” to perform even a ministerial
function.” 46 Schirmer may be evidence of
a political bias against a renegade party;
however tempting that thought is, there is
no direct evidence of a discriminatory im-
pulse, and the need for clarity on whether
there is a conflict of interest even with min-
isterial duties is welcome.
That year Chief Justice Moulton wrote
the majority decision in Trybulski v. Bellows
Falls Hydro-Electric Corporation. Plaintiff
had been damaged by the operation of the
dam. The law governing the Public Utilities
Commission granted that body the authori-
ty to assess damages. The Commission dis-
missed the petition, for lack of jurisdiction.
Moulton agreed, concluding that power
was purely judicial, and not “incidental to
the general supervisory power of the Com-
mission.” It violated Section 5 of the con-
stitution. 47
At the business block on Merchants Row
in Rutland, a passageway on the second
floor linked two buildings, after the walls
were removed. One tenant of one of the
buildings blocked the door. The owner
of the other building sued to have it re-
opened, claiming a right-of-way. The ten-
ant argued the easement had been aban-
doned. On appeal, the Supreme Court, in
the voice of the Chief Justice, upheld the
easement in Nelson v. Bacon (1943). He
explained, “The existence of a thing, per-
manent in its character, once established is
THE VERMONT BAR JOURNAL • SUMMER 2019
presumed to continue thereafter until the
contrary is shown.” 48
The court in Nelson v. Bacon dismissed
the abandonment claim by ruling that “In
order to establish an abandonment there
must be in addition to nonuser, acts by the
owner of the dominant tenement conclu-
sively and unequivocally manifesting either
a present intent to relinquish the easement
or a purpose inconsistent with its future ex-
istence.” In 1989, the Supreme Court re-
versed this position, finally establishing
that “reliance by the owner of the servient
estate is not required to establish an aban-
donment of an easement,” overruling Nel-
son. 49
Three other of Moulton’s decisions were
overruled by subsequent courts. In 1941
his decision in Gero v. John Hancock Mut.
Life Ins. Co. held that the “only inferences
of fact which the law recognizes are imme-
diate inferences from the facts proved,”
and not inferences drawn from other in-
ferences. But he also concluded that par-
allel inferences—several inferences built
on the same facts—were proper. In 2010,
the high court abrogated Gero in State v.
Godfrey, abandoning what it called an un-
workable distinction, a distraction from the
basic question whether the evidence suffi-
ciently and fairly supports a finding of guilt
beyond a reasonable doubt. 50
Charging “gross” error in judgment as
a condition for recovery in a medical mal-
practice case was held to be essential in
Domina v. Pratt (1940), a case express-
ly overruled by Deyo v. Kinley (1989), af-
ter calling the charge “at best misleading
and confusing,” suggesting a “standard of
care higher than ordinary care.” 51 In 2014,
in Demag v. Better Power Equipment, Inc.,
the Supreme Court reversed the holding
in Watterlund v. Billings (1942). A business
owes a driver a duly of reasonable care re-
gardless of the driver’s status as an invitee
or licensee. 52
A major public trust decision was issued
by Chief Justice Moulton in 1944. In State
v. Malquist, his opinion denied a landown-
er’s claim to the right to lower the water
of Lake Fairlee, finding it a public nuisance.
The lake was boatable. “The artificial lake
has become the natural lake, the artificial
level has become the natural level, and the
entire body of water has become subject
to the common rights of fishing and navi-
gation and to all other incidents of public
water.” 53
Finally, the Moulton decision in Town of
Springfield v. Newton (1947) is memorable
for its ruling on the principle of dedication
and acceptance in highway law. The accep-
tance was lacking, even though the road
commissioner maintained the road, when
the selectboard had never explicitly autho-
rized it. 54
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