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ridden . 51
Section 5 of Vermont ’ s Constitution was invoked as justifying a veto by Governor John Mead in 1910 of a bill to grant the State Board of Health the power to issue fines for corporations violating its own rules on heating and ventilating of mills and factories , as that is a judicial function ; 52 Governor Mead ’ s veto of the sterilization bill in 1913 , not because it was too severe , as the newspapers believed , but because it did not provide for an appeal to the Supreme Court and because it applied only to disabled persons residing in state institutions and not to the public at large , invoking Article 7 ( common benefits ) as well ; 53 Government Percival Clement ’ s 1919 veto of a law granting the Public Service Commission the power to initiate proceedings to replace railroad grade crossings with bridges , when the PSC was also the institution to consider the outcome of the claim , which it could not do if it were to maintain a fair and impartial process ; 54 the 1927 veto of a bill to relieve one company of the burden of a fine for violating the law on outdoor advertising by Governor John E . Weeks , because this is a matter for the judiciary to resolve in a pending suit ; 55 the 1957 veto by Governor Joseph B . Johnson of a bill to create an office of state comptroller because it encroached on the Governor ’ s authority ; 56 Governor Snelling ’ s 1980 veto of the amendment to the administrative procedure act that allowed for a legislative veto of administrative rules ; 57 Snelling ’ s 1991 veto of a bill relating to import and export of domestic animals , on the same grounds ; 58 Governor Dean ’ s veto in 1996 of a proposal to change the offenses that would disqualify a person from a waste management position as it was an attempt to change the law for one person , convicted of a crime , having the effect of a pardon ; 59 and Governor Douglas ’ s 2005 veto of a universal health care bill that gave legislators duties that properly belonged to the executive . 60
Article 2 , on the taking of private property for public purposes , was given as the reason for the 1869 veto by Governor Peter Washburn of a bill authorizing the digging of ditches and watercourses across private lands without compensation and without consent ; 61 Samuel Pingree ’ s 1884 veto of a bill to protect Springfield Village highways because it prohibited landowners along a two-mile long length of a brook from improving their real estate and gave the selectboard the authority to order removal of fences , without providing compensation ; 62 and John A . Mead ’ s 1910 veto of a proposal giving railroad corporations the power of eminent domain with no provision for damages . 63
Governor Percival Clement vetoed a bill in 1919 authorizing bonds for county tuberculous hospitals because the bill began life in the Senate , in violation of Section 6 of the
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Constitution , which requires revenue bills to originate from the House of Representatives . 64 Section 6 was also invoked when Charles W . Gates vetoed a measure in 1915 to extend the time to complete railroad construction , which attempted to delegate legislative powers to the Public Service Commission , and in 1888 when William P . Dillingham vetoed a bill giving the State Board of Health the authority to make rules which would be “ legal enactments ,” intruding on the exclusive domain of the legislature . 65
Other vetoes invoke Articles 4 , 10 , and 13 , and Sections 15 , 65 , and 72 . In several cases , Governors vetoed bills because they offended federal law or the fourteenth amendment to the U . S . Constitution , on due process grounds .
Skeptics might say that Governors have no special expertise in constitutional law , and that their vetoes that recite violations of the fundamental law should have no weight in court , but they are wrong to think that way . The fact that a Governor vetoed a law on constitutional grounds , has meaning . As cases emerge that challenge government action and define the meaning of the Constitution ’ s rights and obligations , this body of constitutional law shouldn ’ t be neglected .
The Future of the Veto
The pace is accelerating : Governors and their staffs are becoming more vigilant in exercising the post-enactment review process . Legislatures are becoming more aggressive and Governors more defensive on issues of public policy and finance . Just as the pace of judicial review appears to be increasing , the veto and override engines are heating up , as is the Constitution itself .
There were years when the Constitution was dormant , and rarely used , but an era where every branch remains sensitive to the fundamental law appears to be emerging . The constitution is a tool for all three branches , a corrective , a shield , a border , a prescription for legislation that respects the rights of the people and the limits of governmental power . It is also , of course , our constitution , and we are its primary constituents , not a court , not the General Assembly , not a Governor . But then , we don ’ t have a veto . ____________________ Paul S . Gillies , Esq ., is a partner in the Montpelier firm of Tarrant , Gillies & Richardson and is a regular contributor to the Vermont Bar Journal . A collection of his columns has been published under the title of Uncommon Law , Ancient Roads , and Other Ruminations on Vermont Legal History by the Vermont Historical Society . ____________________
1
There have been 2,574 vetoes by U . S . Presidents since the adoption of the Constitution , and 111 of them have been overridden . https :// www . senate . gov / reference / Legislation / Vetoes / vetoCounts . htm . ( visited 7 / 22 / 18 10:45 a . m .). The
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veto messages of Vermont Governors are found in the journals of the House or Senate , and have been compiled by the State Archives . http :// vermont-archives . org / governance / Vetoes / vetoes . html .
2
This would be a good place to say how many Governors Vermont has had , but that presents a numerical problem . Philip Scott is listed on his official webpage as Vermont ’ s 82th Governor . Governor . vermont . gov /. He is the 76 th person to be elected Governor , the 79 th to serve as Governor , counting Paul Brigham , George Hendee , and Harold Arthur , who as Lieutenant-Governors took over the duties of the chief executive . As this process goes , in keeping with the number given to Presidents , when a Governor is elected for non-sequential terms , the official enjoys a second count , which is the case with Thomas Chittenden , Isaac Tichenor , Jonas Galusha , Erastus Fairbanks , and Richard A . Snelling . That would make the number 84 ( counting the successor Lieutenant-Governors , but the way these counts are made only Governors of States are included , so Thomas Chittenden , Moses Robinson , and Paul Brigham don ’ t qualify as Vermont wasn ’ t a State until 1791 . That adds three to make the number 81 . How we get to 82 is unclear .
3
George Willis Botsford , A History of the Ancient World I ( New York : The MacMillan Company , 1916 ), 345 .
4
James Kent , Commentaries on American Law I , O . W . Holmes , Jr ., ed . ( Boston : Little , Brown , 1873 ), 239-241 .
5
Alexander Hamilton , The Federalist LXIX , in The Debate on the Constitution II ( New York : Literary Classics of the United States , Inc ., 1993 ), 338-339 .
6
John Locke , Carolina Constitution , Sec . LXXVI , in A Collection of Several Pieces of Mr . John Locke ( London : R . Franklin , 1739 ), 11 . “ No Act or Order of Parliament shall be of any force , unless it be ratified in open Parliament during the same session , by the Palatine or his Deputy , and three more the Lords , Proprietors , or their Deputies ; and then not to continue longer in force but until the next biennial Parliament , unless in the mean time it be ratified under the Hands and Seals of the Palatine himself , and three more of the Lords Proprietors themselves , and by their order publish ’ d at the next biennial Parliament .”
7
Robert J . Sptizer , The Presidential Veto ( Albany , N . Y .: State University of New York Press , 1988 ), 4-6 .
8
Id ., 10 .
9
James Madison , The Federalist LI , The Debate on the Constitution II ( New York : Literary Classics of the United States , Inc ., 1993 ), 165 .
10
F . W . Maitland , The Constitutional History of England ( Cambridge : University Press , 1919 ), 195 .
11
Paul S . Gillies and D . Gregory Sanford , eds ., The Records of the Council of Censors of the State of Vermont ( Montpelier , Vt .: Secretary of State , 1991 ), 11 .
12
“ An act directing the form of passing laws ,” John A . Williams , ed ., Laws of Vermont 1781-1784 ( Montpelier , Vt .: Secretary of State , 1965 ), 31-32 .
13
Council of Censors , 51 .
14
“ An act in addition to the act entitled , ‘ An act directing the mode of passing laws ,” Acts and Laws passed by the Legislature of the State of Vermont , at their session at Newbury , in October , 1801 ( Windsor , Vt .: Alden Spooner , 1801 ), 6-7 .
15
E . P . Walton , ed ., Records of the Governor and Council of the State of Vermont VII ( Montpelier , Vt .: J . & J . M . Poland Steam Press , 1879 ), 225 .
16
“ An act repealing part of an act therein mention ,” October 21 , 1826 , Acts and Resolves passed by the General Assembly of the State of Vermont 1825-1827 ( Windsor , Vt .: Simeon Ide , 1828 ), 28-29 ; “ An act , in addition to the several acts , defining the powers of justices of the peace within this state ,” November 19 , 1824 , Acts and
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