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Published online by Cambridge University Press: 02 September 2013
Constitutional Amendment. The Pennsylvania constitution provides: “Any amendment … may be proposed in [either house]; and if the same shall be agreed to by a majority of the members elected to each … the Secretary of the Commonwealth shall cause the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published; and if, in the General Assembly next afterwards chosen, such proposed amendment shall be agreed to … the Secretary of the Commonwealth shall cause the same again to be published in the manner aforesaid; and … submitted to the qualified electors. …” Herman Tausig, suing as a taxpayer, sought to prevent a popular vote on a number of proposed amendments undertaking, among other things, to repeal provisions thought to forbid the levying of graduated income and inheritance taxes and the appropriation of money for old age pensions. In holding that the action was not premature, the court stated: “The law of this state prohibits inquiry into the validity of the steps preliminary to the adoption of an amendment after it has received the approval of the people.” Reversing, or at least qualifying, certain earlier rulings discussed in the opinion, it demanded strict compliance with the procedure set out above, but ruled: “The framers did not intend the Secretary of the Commonwealth should be responsible for the actual publication; he has no means of accomplishing this. Nor will the submission of a proposed amendment be frustrated by the neglect or refusal of one or more newspapers to publish within the specified time. … All the section commands is that the secretary transmit the advertisements of the proposed amendment to the proper newspapers within sufficient time to enable them to be published … three months or more in advance of the election.”
2 Tausig v. Lawrence, 197 A. 235 (Jan., 1938).
3 108 S.W. (2d) 1024 (Oct., 1937). Cf. Coleman v. Miller, 71 P. (2d) 518 (Kan., Sept., 1937).
4 Johnson v. City of New York, 9 N.E. (2d) 30 (June, 1937).
5 Norris v. Mayor and City Council of Baltimore, 192 A. 531 (May, 1937).
6 Opinion of the Justices, 9 N.E. (2d) 186 (May, 1937).
7 Spaulding v. Desmond, 188 Cal. 783, 790 (1922). Cf. the earlier ruling of the same court in Weill v. Kenfield, 54 Cal. 111 (1880), holding an alleged statute void because the journal showed that two of the three readings in each house had been by title only.
8 Charleston National Bank v. Fox, 194 S.E. 4 (Nov., 1937), quoting from 15 R.C.L. 1066. In 1925, the California civil service commission was abolished in this very manner, the governor signing (apparently knowingly) a bill in a form in which it had been overwhelmingly defeated in the senate.
9 To Certain Members of the House of Representatives, 191 A. 269, 272 (April. 1937).
10 Ibid.
11 To Certain Members of the Senate, 191 A. 518 (April, 1937).
12 Brock v. Superior Court, 71 P. (2d) 209, 213 (July, 1937).
13 Daigh v. Schaffer, 73 P. (2d) 927 (Nov., 1937).
14 State ex rel. W.D.A. v. Dammann, 277 N.W. 278 (Jan., 1938).
15 Wright v. Cunningham, 115 Tenn. 445 (1905). Although the act applied to “counties having a population by the Federal Census of 1900, or any subsequent Federal Census, between 14,200 and 15,000,” the court was impressed by the fact that only Bhea county met this test.
16 113 S.W. (2d) 374 (Jan., 1938).
17 67 P. (2d) 240 (April, 1937).
18 State v. Van Trump, 275 N.W. 569 (Oct., 1937).
19 114 S.W. (2d) 441 (March, 1937).
20 Wilson v. School District of Philadelphia, 195 A. 90 (Nov., 1937).
21 195 S.E. 257 (Feb., 1938).
22 In re Hunt, 191 A. 437 (Circuit Court of Cape May County, April, 1937).
23 State v. Shumate, 113 S.W. (2d) 381 (Feb., 1938).
24 Collier & Wallis, Ltd. v. Astor, 70 P. (2d) 171 (July, 1937).
25 City of Enterprise v. State, 69 P. (2d) 953 (June, 1937).
26 People ex rel. Chicago Bar Association v. Goodman, 8 N.E. (2d) 941 (Feb., 1937).
27 Moore v. Love, 107 S.W. (2d) 982 (Aug., 1937).
28 In re Integration of Nebraska Bar Association, 275 N.W. 265 (Sept., 1937).
29 Western and Atlantic R.R. v. Henderson, 278 U.S. 577 (1929).
30 Western and Atlantic R.R. v. Henderson, 279 U.S. 639 (1929).
31 Seaboard Air Line Ry. v. Watson, 287 U.S. 86 (1932).
32 In re Clark's Estate, 74 P. (2d) 401 (Nov., 1937).
33 1 Cranch 137 (U.S. 1803).
34 See p. 672.
35 This is particularly true of In re Opinion of the Justices, 191 A. 485 (Me., Dec., 1936), and of the companion case, same title, in 191 A. 487 (Nov., 1936). No explanation is given for the long delay in publishing these opinions. The court's reluctance to proceed without argument could have been cared for by inviting the parties to appear.
36 See the cases cited in notes 3, 9, 20, 23, and 94.
37 73 P. (2d) 341 (Oct., 1937).
38 What would be done today if a substantial minority of employers, prior to the 1937 reversal of the Adkins case, had secured declaratory judgments that minimum wage laws for women cannot be applied to them?
39 Tatum v. Wheeless, 178 So. 95 (Jan., 1938).
40 Beeland Wholesale Co. v. Kaufman, 174 So. 516 (March, 1937).
41 Brock v. Superior Court, 71 P. (2d) 209 (July, 1937).
42 Compare the ruling In re Lasswell, 1 Cal. App. (2d) 183 (1934), discussed in this Review, Vol. 29, p. 611.
43 City of Phoenix v. Brenninger, 72 P. (2d) 580 (Oct., 1937).
44 Fox v. City of Racine, 275 N.W. 513 (Oct., 1937).
45 Bodkin v. State, 272 N.W. 547 (April, 1937).
46 City of Coshocton v. Saba, 8 N.E. (2d) 572 (Court of Appeals, Coshocton County, Dec., 1936).
47 Ex parte Ferguson, 70 P. (2d) 1094 (Cr. App., July, 1937).
48 Eppley Hotels Co. v. City of Lincoln, 276 N.W. 196 (Nov., 1937).
49 Ex parte Mooney, 73 P. (2d) 554 (Oct., 1937).
50 Sugarman v. State, 195 A. 324 (Oct., 1937).
51 Hitzelberger v. State, 197 A. 605 (March, 1938). Cf. Olmstead v. United States, 277 U.S. 438 (1928); Nardone v. United States, 302 U.S. 379 (1937).
52 In reversing a conviction where the officer making the arrest, under circumstances which would constitute ample justification for such arrest in most states, was accompanied at the time by a motorist who was in trouble and whom he was driying to a service station, the opinion commented: “The record does not disclose why there should be any jealousy between the defendant … and the witness Wheeler as each of them had their woman, and there was no testimony that defendant tried to interfere with the woman the patrolman had with him in his car.” Bowdry v. State, 77 P. (2d) 753 (Okla. Cr., March, 1938). Were the police to make such remarks concerning the judges, they would be punished for contempt of court. One may doubt if such tactics will succeed where reversals have failed.
53 Lee v. State, 71 P. (2d) 1090 (Sept., 1937).
54 Ambrester v. State, 110 S.W. (2d) 332 (Nov., 1937).
55 In re Schaefer, 134 Cal. App. 498.
56 West v. Cabell, 153 U.S. 78 (1894).
57 Elliott v. Haskins, 67 P. (2d) 698 (April, 1937).
58 See p. 673.
59 See Woods, D. C., “Criminal Law Administration in Canada”, 14 Texas Law Rev. 337, 352 (1936)Google Scholar.
60 191 A. 320 (March, 1937). The state appealed from a conviction of second degree murder, was granted a new trial, and secured a conviction for first degree murder. In Palko v. Connecticut, 302 U.S. 319 (Dec., 1937), one judge dissenting, it was held that this does not violate due process. The opinion intimated a willingness to reconsider the right of the federal government to adopt such a practice.
61 In re Jibb, 191 A. 552 (April, 1937).
62 273 N.W. 353 (Minn., May, 1937).
63 67 P. (2d) 240 (N. Mex., on rehearing, April, 1937).
64 69 P. (2d) 703 (Kan., July, 1937).
65 74 P. (2d) 243 (Cal., Dec., 1937).
66 74 P. (2d) 696 (Utah, Dec., 1937).
67 State ex rel. Connolly v. Parks, 273 N.W. 233 (Minn., May, 1937).
68 See Grant, J. A. C., “Penal Ordinances and the Guarantee Against Double Jeopardy”, 25 Georgetown Law Jour. 293, 297 (1937)Google Scholar.
69 70 P. (2d) 202 (Cal. App., July, 1937).
70 People v. Clark, 74 P. (2d) 1070 (Cal. App., Jan., 1938).
71 Trott v. State, 70 P. (2d) 118 (Okla. Cr., July, 1937). The opinion correctly stated that “the authorities are in hopeless conflict” on this point.
72 71 P. (2d) 321 (Cal. App., June, 1937). The supreme court denied a rehearing July 9, 1937.
73 195 A. 433 (Dec., 1937).
74 See Grant, J. A. C., “Self-Incrimination in the Modern American Law”, 5 Temple Law Quar. 368, 375 (1931)Google Scholar.
75 State v. Chickasha Milling Co., 71 P. (2d) 981 (Sept., 1937).
76 Jamaica Savings Bank v. M. S. Investing Co., 8 N.E. (2d) 493 (April, 1937).
77 Martin v. Strubel, 10 N.E. (2d) 325 (June, 1937).
78 J. B. Green Kealty Co. v. Florida Real Estate Commission, 177 So. 535 (Nov., 1937).
79 In re Brewer, 276 N.W. 766 (Dec., 1937).
80 Ned v. Robinson, 74 P. (2d) 1156 (Sept., 1937).
81 Hasty v. Pierpont, 72 P (2d) 69 (Oct., 1937).
82 First Trust Co. of Lincoln v. Smith, 277 N.W. 762, 767, 772 (Feb., 1938).
83 Although the last statement was not strictly accurate when written, it has been made so through the reversal of Swift v. Tyson by Erie R. R. v. Tomkins, 58 S. Ct. 817 (April, 1938).
84 290 U.S. 398 (1934), discussed in this Review, Vol. 29, p. 54.
85 See this Review, Vol. 29, p. 621; Vol. 30, pp. 693, 707; Vol. 31, pp. 668, 672, 674. And see infra. I have discussed this subject in Annuaire de l'Institut International de Droit Public (1937), p. 314Google Scholar.
86 Federal Land Bank of Columbia v. Garrison, 193 S.E. 308 (May, 1937). The court attempts to reconcile its ruling with that in Richmond Mortgage and Loan Corp. v. Wachovia Bank & Trust Co., 300 U.S. 124 (Feb., 1937), by quoting portions of each of two sentences from the latter opinion. In view of the facts of the two cases, the effort is scarcely successful.
87 Ellery v. Superior Court, 77 P. (2d) 280 (Cal. App., March, 1938).
88 72 P. (2d) 868 (Cal., Oct., 1937).
89 Reeves v. Crownshield, 8 N.E. (2d) 283 (April, 1937). Since the New York constitution contains no specific guarantee, the case was argued on the due process clause. Hence it is none too reliable a precedent for other states.
90 Schuster v. I.A.M., Auto Mechanics Lodge No. 701, 12 N.E. (2d) 50 (Dec., 1937).
91 State v. Guertin, 193 A. 237 (June, 1937).
92 Ex parte Kazas, 70 P. (2d) 962 (July, 1937).
93 Rust v. Griggs, 113 S.W. (2d) 733 (March, 1938).
94 Balzer v. Caler, 74 P. (2d) 839 (Dec., 1937).
95 76 P. (2d) 81 (Jan., 1938).
96 Edelmann v. City of Port Smith, 105 S.W. (2d) 528 (May, 1937).
97 People v. Lewis, 77 P. (2d) 249, & People v. Yalo, 77 P (2d) 251 (Cal. App., March., 1938).
98 10 N.E. (2d) 619 (Oct., 1937).
99 73 P. (2d) 1227 (Cal. App., Dec., 1937). On June 1, 1938, the state supreme court sustained this ordinance in a case that has not yet been reported.
100 Reynolds Metal Co., v. Martin, 107 S.W. (2d) 251 (June, 1937). Appeal dismissed for want of a substantial federal question, 302 U.S. 646 (Nov., 1937).
101 253 U.S. 245 (1920).
102 268 U.S. 501 (1925).
103 Martin v. Wolfford, 107 S.W. (2d) 267, 271 (June, 1937).
104 Du Pont v. Green, 195 A. 273 (Oct., 1937).
105 Norris v. Town of Union City, 191 S.E. 105 (April, 1937).
106 See this Review, Vol. 31, p. 679.
107 State v. Mercer County Board of Taxation, 193 A. 555 (July, 1937).
108 Martin v. Nocero Ice Cream Co., 106 S.W. (2d) 64 (March, 1937).
109 Shannon v. Hughes and Co., 109 S.W. (2d) 1174 (June, 1937). Two judges, dissenting, felt that the money should be refunded with no questions asked.
110 Spahn v. Stewart, 103 S.W. (2d) 651 (March, 1937).
111 Albritton v. City of Winona, 178 So. 799 (Feb., 1938).
112 Gross v. Gates, 194 A. 465 (Oct., 1937).
113 Helm v. Childers, 75 P (2d) 398 (Jan., 1938).
114 See this Review, Vol. 30, p. 710.
115 Palmer v. Havwood County, 193 S.E. 668 (Nov., 1937).
116 274 N.W. 319 (June, 1937).
117 Abbott v. Iowa City, 277 N.W. 437 (Jan., 1938).
118 Soukup v. Sell, 104 S.W. (2d) 830 (May, 1937).
119 Dowler v. State ex rel. Prunty, 66 P. (2d) 1081 (Feb., 1937).
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