Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 18

Ruminations
18
the boundaries of the law of search and seizure,
the only individuals enjoying any constitution-
al rights recognized by this Court are the crimi-
nals”); State v. Kirchoff, 156 Vt. 1, 22 (1991).
12
Perhaps the best definition of a conserva-
tive is found in how an individual feels about
the past. E.J. Phelps was regarded by his peers
as the greatest lawyer of the second half of the
nineteenth century. His biographer said of him,
“He would not hesitate to say that he loved
some things simply because they were old and
because the things that were old and had sur-
vived are likely to be the best. He loved to find
the good in ancient institutions and laws. He
loved the old-time manners, old courtesies and
reverences.” Matthew Henry Buckham, “Life and
Public Services of the Hon. Edward J. Phelps,”
Proceedings of the Vermont Historical Society,
October 16 and November 7, 1900 (Burlington,
Vt.: The Free Press Association, 1901), 151.
13
Redfield Proctor, Charles H. Davenport, Levi
Knight Fuller, Men of Vermont (Brattleboro, Vt.:
Transcript Publishing Company, 1894), 283; Jay
Read Pember, “Randolph,” The Illustrated His-
torical Souvenir of Randolph, Vermont (Ran-
dolph, Vt: Nickerson & Cox, 1895), 76.
14
Vermont Historical Society, Proceedings
(Montpelier, Vt.: Vermont Historical Society,
1913-1914), 44.
15
Sherman Roberts Moulton, The Boorn Mys-
tery (Montpelier: The Vermont Historical Soci-
ety, 1937). See State v. Woolley, 109 Vt. 53, 57
(1937), a case where the Chief Justice ruled that
circumstantial evidence was sufficient to convict
a person of perjury, the same argument used in
his Boorn book to justify the brothers’ convic-
tions without direct evidence of a killing, as no
body had been found.
16
Charles Warren, History of the Harvard Law
School and of Early Legal Conditions in America
(New York: Lewis Publishing Company, 1908) III,
1913), 292.
17
Jeff Shesol, Supreme Power: Franklin Roo-
sevelt vs. the Supreme Court (New York: W.W.
Norton & Company, 2010), 434.
18
The leading cases frustrating the New Deal in-
cluded Louisville Joint Stock Land Bank v. Rad-
ford, 295 U.S. 555, 581 (1935) (the law compel-
ling a bank to surrender either the possession of
or the title to mortgaged property to the bank-
rupt mortgagor, so long as any part of the debt
remained unpaid, in order to “relieve the honest
debtor from the weight of oppressive indebted-
ness, and permit him to start afresh free from
the obligations and responsibilities consequent
upon business misfortunes” was a taking with-
out just compensation, in violation of the Fifth
Amendment); Humphrey’s Ex’r v. U.S., 295 U.S.
602, 631-632 (1935) (the President’s removal of
one of the commissioners of the Federal Trade
Commission, giving no reasons other than a dif-
ference of opinion on federal trade policy, was
a violation of the separation of powers for not
reciting the grounds for the removal; A.L.A.
Schechter Poultry Corporation v. U.S. 295 U.S.
495 (1935)(A poultry code enacted by an indus-
try association and approved by the President
was challenged after a company was convicted
of violating the code and the Supreme Court
struck down the law after concluding this a too
“sweeping delegation of legislative power,” as
the legislation contained no standards or rules of
conduct, leaving too much discretion in the Pres-
ident’s authority, and because it was an attempt
to regulate intrastate commerce, without con-
stitutional authority; U.S. v. Butler, 297 U.S. 1,
58-59 (1936) (the Agricultural Adjustment Act of
1933 authorized the government to set the pric-
es of farm commodities to ensure farmers ob-
tained a fair price for their goods. A cotton man-
ufacturer challenged the law, and the Supreme
Court agreed that “[b]eyond cavil the sole ob-
ject of the legislation is to restore the purchasing
power of agricultural products to a parity with
that prevailing in an earlier day; to take money
from the processor and bestow it upon farmers
who will reduce their acreage for the accom-
plishment of the proposed end, and, meanwhile,
to aid these farmers during the period required
to bring the prices of their crops to the desired
level.” This was an improper use of the taxing
power, and the high court struck down, conclud-
ing it was not constitutional, as it did not provide
for the general welfare.
Justice Owen Roberts wrote the Butler deci-
sion for the majority. He explained his view of ju-
dicial review:
There should be no misunderstanding as to
the function of this court in such a case. It
is sometimes said that the court assumes
a power to overrule or control the action
of the people’s representatives. This is a
misconception. The Constitution is the su-
preme law of the land ordained and estab-
lished by the people. All legislation must
conform to the principles it lays down.
When an act of Congress is appropriately
challenged in the courts as not conform-
ing to the constitutional mandate, the ju-
dicial branch of the government has only
one duty; to lay the article of the Consti-
tution which is invoked beside the statute
which is challenged and to decide whether
the latter squares with the former. All the
court does, or can do, is to announce its
considered judgment upon the question.
The only power it has, if such it may be
called, is the power of judgment. This court
neither approves nor condemns any legis-
lative policy. Its delicate and difficult office
is to ascertain and declare whether the leg-
islation is in accordance with, or in contra-
vention of, the provisions of the Constitu-
tion; and, having done that, its duty ends.
The Bituminous Coal Conservation Act im-
posed a tax of 15 percent on the sale price of
coal at the mine and 13.5 percent for captive
coal. The Supreme Court, finding that as the pur-
pose of the tax was to compel compliance with
the act, held it was not a tax but a penalty, and
an attempt to regulate beyond the authority of
the commerce clause of the federal constitution.
It struck down the tax, as well the act’s prefixing
and regulations of wages and hours by delegat-
ing authority to producers, and a denial of due
process. Carter v. Carter Coal Co., 298 U.S. 238
(1936). The Supreme Court held that New York’s
minimum wage law for women and minors, that
forbade wages which were “less than fair and
reasonable value of services and less than suf-
ficient to meet minimum cost of living necessary
for health,” violated the due process clause of
the Fourteenth Amendment protecting freedom
of contract. Morehead v. People of the State of
New York ex rel. Tipaldo, 298 U.S. 587 (1936).
Justice Roberts later changed his mind, and
in so doing brought on a fundamental shift in
the court’s decisions. The change became clear
in 1937. The minimum wage law for women un-
der Washington State was upheld and forced a
reexamination of the federal rulings on the sub-
ject. “What can be closer to the public interest
than the health of women and their protection
from unscrupulous and overreaching employers?
And if the protection of women is a legitimate
end of the exercise of state power, how can it
be said that the requirement of the payment of
a minimum wage fairly fixed in order to meet the
very necessities of existence is not an admissi-
ble means to that end?” West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 398 (1937).
19
Village of St. Johnsbury v. Aron, 103 Vt. 22
(1930).
20
Vermont Salvage Corp. v. Village of St. Johns-
THE VERMONT BAR JOURNAL • SUMMER 2019
bury, 113 Vt. 341 (1943).
21
In re Opinion of the Justices, 115 Vt. 524
(1949).
22
Village of Waterbury v. Melendy, 109 Vt. 441,
446-447 (1938).
23
Great Atlantic & Pacific Tea Co. v. Harvey, 107
Vt. 215 (1935).
24
State v. O’Brien, 106 Vt. 97 (1934).
25
Town of Hartland v. Damon’s Estate, 103 Vt.
519 (1931).
26
Sowma v. Parker, 112 Vt. 241 (1941).
27
Kelbro, Inc. v. Myrick, 113 Vt. 64 (1943).
28
Village of Hardwick v. Town of Wolcott, 98 Vt.
343 (1925).
29
City of Montpelier v. Gates, 106 Vt. 116
(1934).
30
State v. Levy, 113 Vt. 374 (1943).
31
State v. Auclair, 110 Vt. 147, 156 (1939).
32
Clark v. City of Burlington, 101 Vt. 391 (1928).
33
State v. Auclair, 110 Vt. at 156.
34
In re Cornell, 111 Vt. 454, 460 (1941).
35
University of Vermont and State Agricultural
College v. Ward, 104 Vt. 239 (1932).
36
Collette v. Town of Charlotte, 114 Vt. 357
(1946).
37
Id. At 363.
38
Billings v. Billings, 114 Vt. 512, 517 (1946).
39
Ibid. at 519-520.
40
Wilk v. Wilk, 174 Vt. 343, 345 (2002).
41
State v. Baker, 114 Vt. 94, 113 (1947).
42
State v. Goyet, 120 Vt. 12. 69-70 (1957).
43
Kinsley v. Herald & Globe Ass’n, 113 Vt. 272,
279-280 (1943).
44
For example, In re Miserocchi, 170 Vt. 320
(2000); In re Handy, 171 Vt. 336 (2000); In re Ap-
peal of JAM Golf, LLC, 185 Vt. 201 (2008).
45
State v. Auclair, 110 Vt. 147 (1939)
46
Schirmer v. Myrick, 111 Vt. 255, 257-258
(1941).
47
Trybulski v. Bellows Falls Hydro-Electric Cor-
poration, 112 Vt. 1 (1941).
48
Nelson v. Bacon, 113 Vt. 161, 167-168 (1943).
49
Lague, Inc. v. Royea, 152 Vt. 499 (1989).
50
Gero v. John Hancock Mut. Life Ins. Co., 111
Vt. 462 (1941)’ State v. Godfrey, 187 Vt. 495
(2010). ¶ 19.
51
Domina v. Pratt, 111 Vt. 166 (1940); Deyo v.
Kinley, 152 Vt. 196, 208-209 (1989).
52
Watterlund v. Billings, 112 Vt. 256 (1942);
Demag v. Better Power Equipment, Inc, 195 Vt.
176 (2014).
53
State v. Malmquist, 114 Vt. 96, 101 (1944).
54
Town of Springfield v. Newton, 115 Vt. 39
(1947).
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