judicial powers into an administrative agen- cy. He wrote,
We are living in a time of great political unrest. From one direction comes the call that the government be restored to the people; from another comes the warning that constitutional government is imperiled; from all directions comes the demand, clamorous, persistent, and not always reasonable, for more and more drastic regulation of public ser- vice corporations. It is a time when leg- islative usurpations may be expected to be more frequent. It is a time for judges to be fearless, and courts to be firm. It is a time for that “recurrence to funda- mental principles” which is “necessary to preserve the blessings of liberty, and keep government free.” This court has lost an opportunity.24
The state was largely Republican, but that did not guarantee unanimity of poli- cies, and that “great political unrest” was revealed in a struggle over how invasive government should be in the conduct of business. Conservatives objected to chang- es that would limit the freedom of corpora- tions, particularly railroads, from operating for a profit. Sabre is important because it reflects the internal division on the high court, from 1910 to 1914, conflict that Justice Hill de- scribed as greater than “any court before or since.”25
The holding of the majority con-
tributed to the judicial crisis of 1914-1915, where politics infected the process of ap- pointing judges and Governor Allen Fletch- er interfered with the tradition of seniority on the court. Given Watson’s position in Sa- bre, his subsequent treatment of the Public Service Commission reflects a hard line on this administrative agency. His decision in In re James (1924) reversed the Commission’s decision to regulate a public bus company by applying its regulations retrospectively.26 In Hawkins v. Vermont Hydro-Electric Co. (1924), he faulted the Commission for fail- ing to adopt rules guaranteeing safe instal- lation of home electrification, and reversed its order finding the utility liable.27 With Fletcher retired, the legislature vot- ed two bills and sent them to Governor Charles W. Gates for signature, calling for legislative elections of justices and judges. This created a fear that if the present Court did not resign, there would be two Su- preme Courts, and judicial confusion. Gates sent word to the Court that he was poised to sign the legislation, and this caused the four justices to resign in order to avoid the problem. The legislature then elected Loveland Munson chief justice, and Watson, Haselton, Powers, and Taylor as associate justices in that order, the order of senior- ity that would have been followed without
10 THE VERMONT BAR JOURNAL • WINTER 2012
Fletcher’s independent thinking.28 George M. Powers’ first stint as chief jus- tice had lasted a little less than two months. After Munson retired in 1917, Watson was elected chief, and when Watson died in 1929, Powers was appointed chief by Gov- ernor John Weeks, as the seniority system directed. Order was restored for anoth- er several decades. Seniority is no longer a feature of judicial appointments of chief justices.
The Address On January 4, 1921, Chief Justice Watson
delivered an address to the Vermont Bar As- sociation, entitled, “In re Vermont Constitu- tion of 1777, as regards its adoption, and its declaration forbidding slavery; and the sub- sequent existence of slavery within the ter- ritory of the sovereign state.” The address was reprinted in 94 Vt. 501-525 and in the Proceedings of the Vermont Historical Soci- ety.29
Watson wrote the address in response
to an author preparing to write a book on slavery, who wondered how early Vermont had addressed the subject constitutional- ly. The question presented was simply how that first constitution could be legitimate when it was not submitted directly to the people for ratification. Watson wrote a brief for Vermont in this address. He began by explaining how, by electing delegates to the convention in Windsor in July of 1777— the voters having copies of the draft con- stitution before them for review—Vermont- ers delegated that authority to their repre- sentatives. Watson used an idea familiar to the workings of the high court: “May it not be allowed to speak as an ancient official public document of verity? And especially so in view of the principle that all acts done by what appears to be public authority are presumed to be rightly done, until the con- trary is proved?”30 Even greater approval of the first consti- tution is seen, according to Watson, in the first election of officials, and the oath or af- firmation of office taken by those officials, solemnly promising not, “directly or indi- rectly, [to] do any act or thing, prejudicial or injurious to the Constitution or govern- ment thereof, as established by Conven- tion.”31
The people’s delegation of author- ity was justified as the embodiment of the legal idea that “he who acts through anoth- er acts through himself … ”32
Every freeman
had to take the oath prescribed by the con- stitution in order to vote, and by that oath expressly embraced the constitution to de- termine “the best good” of the state of Ver- mont.33
This was consent of the governed,
one by one. Above everything else, according to Wat- son, it was the Vermont Supreme Court that first recognized the primacy of the consti- tution, in Selectmen of Windsor v. Jacob
www.vtbar.org
Ruminations: A Hero Once, a Judge for Life
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