Vermont Bar Journal, Vol. 40, No. 2 Spring 2016, Volume 42, No. 1 | Page 13

cally acted upon in all cases without incongruity , and without resulting in embarrassment or injury in any .” Then he paused .
Without undertaking to overrule the view expressed in those cases , as applied and acted upon in them , we think the truer and more legitimate view is , that while in a certain sense , the acts of the deputy are to be regarded as the acts of the sheriff , yet not in the sense of either agency or identity ; but rather in the sense of official relation and of responsibility cast by law upon the sheriff for the acts of his deputy ; not in the sense that what the deputy does is done by the sheriff , but that for what he does the sheriff is made responsible the same as if he had officially done the same thing . 40
Why be shy ? Why not dare to call it what it is — an overruling ?
In 1868 , in Hall v . Ray , the court expressly overruled Hale v . Miller ( 1843 ), holding that action on the case against an officer for a false return of seized property is not the exclusive writ to obtain relief . 41 This is among the decisions that reflect the beginning of a loosening of the tight restrictions of common law pleading , a process that reached its apogee in 1915 , when the legislature enacted the Practice Act , and in 1972 with the transfer of power to adopt rules on pleadings from the legislature to the Supreme Court . 42 In State v . Peterson ( 1869 ), the Supreme Court declared that the obiter dictum in several cases , including State v . Conlin ( 1855 ), “ conferring final jurisdiction in criminal causes upon a justice or police court , to try and decide such causes without the intervention of a jury , are not supported by authority ; nor by any approved mode of construction applicable to constitutional rights , and can not have the weight of authority .” 43
After 1869 , twenty years pass before another overruling . There would be other periods of relative stability in the evolution of Vermont law . Between 1895-1929 there was only one . Between 1932 and 1949 , there were none .
The Middle Period
Francher v . Stearns ( 1889 ) held that the decisions of officials disqualified from office because they weren ’ t naturalized citizens who are nevertheless appointed or elected into office cannot be challenged , based on the de facto officer doctrine , overruling Woodstock v . Bolster ( 1863 ). A landowner had questioned the collection of his tax claiming the tax was invalid as a nonresident was a member of the school board and voted to propose the tax that had then been voted by the district . 44 This may be the beginning of the movement of the law toward greater immunity of municipal and state officials , and certainly the idea that government action may not be reversed without a better reason .
Perhaps the most important overruling case is State v . Burpee , decided in 1892 , which overruled dozens of earlier cases , beginning with State v . Croteau ( 1849 ), and held that the presiding judge was responsible for determining the law , not the jury as had been the rule for forty-three years . 45 This was not unique to Vermont . Other states had been organized with that very democratic , albeit nullificatious , doctrine in place , but most had long reversed the rule , ensuring that jury instructions were to be treated as directory and respecting the integrity of the statutory and common law .
Hutchins v . Olcutt ( 1832 ) was overruled in 1895 by Robinson v . Leach , holding that when a creditor takes a note , extinguishing an implied contract , he need not “ be taken to waive the lien .” 46 The court explained that if Hutchins is opposed to that principle , “ it must be regarded as departed from to that extent .” “ Departed from ” is an overruling .
Then came another spell of confidence on the Court , without a reversal of a precedent for twenty-five years . It was 1920 when State v . Prouty overruled State v . Drown ( 1911 ), holding that it is not due process to try , convict , and sentence an accused on an information to which the defendant has not been arraigned nor pleaded . 47 The next one was the 1929 decision in Loverin v . Wedge , overruling the 1846 decision in Hodgeden v . Hubbard , holding that a transaction induced by fraudulent representations is voidable , not void , and that a right of property or possession might pass to the defrauded vendor . 48 O ’ Brien v . Holden ( 1932 ) overruled Porter v . Bank of Rutland ( 1847 ), holding that trusts embracing personal property may not be partly in writing and partly by parol , as “ unsupported by reason or authority . The safety and integrity of written trusts would be seriously imperiled by such a rule .” 49 Eighty-five years separates O ’ Brien and Porter , making this the deflowering of the oldest precedent in the list .
In 1948 , the Supreme Court overruled Kelly v . Hoosac Lumber Co ., which had held that “ the right to compensation given to an employee by the terms [ of the workers ’ compensation law ] is a right existing at common law and not a right created by statute .” The common law created no such rights , according to the Court ’ s decision in Grenier v . Alta Crest Farms . Any rights are created only by statute in this area of law . 50 In Capello ’ s Adm ’ r v . Aero Mayflower Transit Co . ( 1949 ), the Vermont Supreme Court overruled Ronan v . J . G . Turnbull Co . ( 1926 ), holding that “ from proof of the defendant ’ s
Ruminations www . vtbar . org THE VERMONT BAR JOURNAL • SPRING 2016 13