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Published online by Cambridge University Press: 02 September 2013
During the past year, the state appellate courts have reviewed state legislation with a degree of restraint more marked than in the preceding year. The present attitude of the courts toward the work of legislatures may be in part the result of a change in court personnel. It is also both possible and probable that judges have been impressed by the more tolerant or liberal attitude of the United States Supreme Court. Finally, a few of the judges may have become aware of the fact that the times demand the relinquishment of an assumed judicial “supremacy” and the examination of legislative and administrative action under specific constitutional provisions in the light of social and economic realities. At all events, judicial review in the grand manner has given way to a more vigorous application of technical constitutional requirements. Courts are tending to emphasize procedure rather than substance; review appears to be at once more tolerant and more precise; decisions turn on narrower grounds, premises are less sweeping. When applied to state constitutions, this tendency means something quite different from what it means when applied to the national constitution.
This tendency may perhaps be regarded as charged with possible evil results for the courts. Although state constitutions are, in most cases, so detailed and diverse that no actual diminution of the courts' discretionary powers need result, and although to a successful litigant it makes little difference whether a statute is invalidated for want of due process or for want of a proper title or enacting clause, it is difficult to conceive of many things that will bring the courts more quickly into popular disrepute than an exaggeration of constitutional technicalities.
2 For a discussion of the change in the attitude of the federal Supreme Court toward its reviewing functions, see Ribble, F. D. G., “Some Aspects of Judicial Self-Restraint,” Virginia Law Rev., Vol. 26, pp. 981–998 (June 1940).CrossRefGoogle Scholar
3 In this connection, see Vaughn & Ragsdale Co., Inc. v. State Board of Equalization et al., 96 P. 2d 420 (Mont., Dec., 1939), discussed below, p. 702.
4 State ex rel. Landis v. County Board of Public Instruction of Hillsborough County et al., 188 So. 88 (Fla., May, 1939). The Arkansas constitution was held to grant the right of referendum to the people on legislation of every character, whether the legislation affects all or only a part of the citizens of a municipality. Carpenter v. City of Paragould et al., 128 S. W. 2d 980 (Ark., June, 1939). On property qualifications for voting, see Board of Education of School District No. 7, Dearborn Township, v. Cahow, 287 N.W. 484 (Mich., July, 1939).
5 State ex rel. Whitley v. Rinehart, 192 So. 819 (Fla., Jan., 1940). A ballot title that was the same as a legislative title was held sufficient. Hogan v. Hall, Secretary of State, 130 S.W. 2d 716 (Ark., July, 1939), and Bailey v. Hall, Secretary of State, et al., 131 S.W. 2d 635 (Ark., Oct., 1939).
6 Sims Printing Co. v. Frohmiller, 92 P. 2d 334 (Ariz., July, 1939). The phrase “until the next regular election” used in the Georgia constitution to limit the tenure of supreme court judges appointed by the governor to fill vacancies was defined in Stephens v. Reid, 6 S.E. 2d 728 (Ga., Dec., 1939). The court followed the weight of authority in denying office to one who had been elected at a special election. The same rule was applied to a vacancy in the office of attorney-general in Wood v. Arnall, 6 S.E. 2d 722 (Ga., Dec., 1939). When the governor calls a special election to consider an initiative constitutional amendment, a referendum which has qualified for submission to the voters must be presented at the same special election, Hart v. Jordan, Secretary of State, et al., 94 P. 2d 808 (Cal., Sept., 1939).
7 Matthews v. Bailey, Governor, et al., 130 S.W. 2d 1006 (Ark., July, 1939).
8 Matthews v. Bailey, Governor, 131 S.W. 2d 425 (Ark., Aug., 1939).
9 125 S.W. 2d 101 (Ark., Feb., 1939).
10 Vaughn & Ragsdale Co., Inc., v. State Board of Equalization et al., 96 P. 2d 420 (Mont., Dec., 1939).
11 Standard Oil Co. (Indiana) v. State Board of Equalization et al., 99 P. 2d 229 (Mont., Feb., 1940).
12 See note 10 above.
13 See note 11 above.
14 Storrs v. Heck. State Controller, et al. 190 So. 78 (Ala., June, 1939).
15 Fort v. Dekle, Supervisor of Registration, et al., 190 So. 542 (Fla., May, 1939). In State ex rel. Coleman v. York et al., 190 So. 599 (Fla., July, 1939), the same court declared void a statute of 1935 which excepted counties of “populations of between 4,115 and 4,130, and … 4,060 and 4,070, according to the 1930 census” from provisions of state medical and dental practice acts, and which in effect permitted persons not holding licenses to practice medicine in these sparsely settled counties.
16 Carney et al. v. Lowe et al., 9 A. 2d 418 (Pa., Nov., 1939). In the case of Com monwealth ex rel. Graham v. Schmid, 3 A. 2d 701 (Pa., Jan., 1939), the court had held that a law which granted a 15-point credit to aid in passing a civil service examination was unconstitutional in that it violated the constitutional prohibition against the granting of any special or exclusive privilege or immunity. See also Blackford v. Judith Basin County, 98 P. 2d 872 (Mont., Feb., 1940).
17 The court stated that the act might have been invalidated on substantive grounds had it not fallen on procedural defects. George Cole Motor Co. et al. v. McCanless, Commissioner of Finance and Taxation, et al., 130 S.W. 2d 93 (Tenn., July, 1939). See also Joyce v. Price, County Director of Bridges, et al., 8 A. 2d 226 (N.J., Aug., 1939).
18 96 P. 2d 727 (Utah, Dec., 1939). The tax was reduced slightly in 1937.
19 Petition of Special Assembly Interim Committee on Public Morals of California Legislature, 83 P. 2d 932 (Cal., Nov., 1938).
20 The court incorporated the opinion delivered in the earlier case into its decision on rehearing. Two judges who dissented on rehearing took no part in the original decision.
21 See McGrain v. Daugherty, 273 U.S. 135 (1927), 50 A.L.R. 1.
22 Petition of Special Assembly Interim Committee on Public Morals of California Legislature, 90 P. 2d 304 (Cal., May, 1939). See also the companion case of Swing et al. v. Riley, State Controller, 90 P. 2d 313 (Cal., May, 1939), incorporating here on rehearing the opinion delivered in 83 P. 2d 938 (see footnote 20 above), which applied the doctrine of the case above examined to the state senate. The fact that senators serve for four-year terms did not change the case, as half of that body is up for election every two years. The court here, however, went further and ruled that the legislature was powerless at a special session to pass a concurrent resolution proposing to validate its prior action in creating interim committees to sit after adjournment.
23 Leonard v. Maxwell, Commissioner of Revenue, 3 S.E. 2d 316 (N.C., June, 1939).
24 State ex rel. Charlton, Adjutant-General v. French, State Treasurer, 99 P. 2d 715 (N.M., Feb., 1940).
25 Section 96: “No duties shall be imposed by law upon the Supreme Court or on any of the judges thereof, except as are judicial, nor shall any of the judges thereof exercise any power of appointment except as herein provided.”
26 The judges were unamimous in holding unconstitutional those provisions of the law which provided for judicial supervision of contracts for printing and binding of the complete code. It is interesting to note that in this case the entire supreme court disqualified itself. The places of the regular members of the court were taken by district court judges. State ex rel. Mason v. Baker, State Auditor, et al., 288 N.W. 202 (N.D., Oct., 1939).
27 In re Bledsoe, 97 P. 2d 556 (Okla., Dec., 1939). See also In re Integration of State Bar of Oklahoma, 95 P. 2d 113 (Okla., Oct., 1939): “There is no express grant of power in the constitution of Oklahoma giving to any of the three departments of the government the right to define and regulate the practice of law, but the very fact that the supreme court was created by the constitution gives it the right to regulate … and control the practice of law within its jurisdiction”(!). See Grant, in this Review, Vol. 33, pp. 619–620 (Aug., 1939).
28 Woelfel v. State, 9 A. 2d 826 (Md., Nov., 1939). See also Levin v. Hewes, 86 A. 233 (Md., Dec., 1912), and the Kansas case of In re Greer, 48 P. 950 (Kan., May, 1897).
29 State ex rel. Jonak v. Beall et al., 24 N.E. 2d 826 (Ohio, Jan., 1940).
30 The court relied in part on Industrial Commission of Ohio v. Monroe et al., 146 N.E. 213 (Ohio, Dec., 1924), which case held that “the right of appeal is a statutory right and by legislative action this right may be given or denied.”
31 Kaiser v. North et al., 289 N.W. 325 (Mich., Dec., 1939).
32 287 N.W. 551 (Mich., Sept., 1939).
33 (Court of Appeals), 22 N.E. 2d 418 (Ohio, Jan., 1939).
34 8 A. 2d 533 (Conn., Oct., 1939).
35 303 U.S. 444. In this case, the supreme court held a municipal handbill ordinance “invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship…. The liberty of the press … necessarily embraces pamphlets and leaflets.”
36 Cantwell et al. v. State, 60 S. Ct. 900 (May 20, 1940).
37 Swing et al. v. American Federation of Labor et al., 22 N.E. 2d 857 (Ill., Oct., 1939).
38 Thornhill v. State of Alabama, 60 S.Ct. 736 (Apr. 22, 1940); Carlson v. People of the State of California, 60 S.Ct. 746 (Apr. 22, 1940). For a discussion of the relation of moving pictures to the guarantee of freedom of speech, see Thayer Amusement Corp. v. Moulton et al., 7 A. 2d 682 (R.I., July, 1939).
39 State ex rel. Bleich et al., v. Board of Public Instruction for Hillsborough County et al., 190 So. 815 (Fla., Aug., 1939).
40 Minersville School Dist. et al. v. Gobitis et al., 83 L. ed. adv. 993 (June 3, 1940).
41 The contention of a Kansas taxpayer that public school funds could not be used in support of a parochial school was sustained in Wright v. School District No. 27 of Woodson County et al., 99 P. 2d 737 (Kan., Mar., 1940).
42 The three more interesting cases held, respectively, (1) that a Detroit ordinance requiring cut flower vendors to be licensed was invalid (S. S. Kresge Co. v. Couzens, Mayor, et al., 287 N.W. 427 (Mich., Sept., 1939)); (2) that a Columbus, Georgia, graduated chain store tax based on the number of stores and number of employees was also invalid (Great Atlantic and Pacific Tea Co. v. City of Columbus et al., 6 S.E. 2d 320 (Ga., Dec., 1939)); and (3) that the Georgia milk control act was constitutional (Holcome et al. v. Georgia Milk Producers Confederation et al., 3 S.E. 2d 705 Ga., June, 1939).
43 State v. Pehrson, 287 N.W. 313 (Minn., Aug., 1939). This clause was held not to be violated: (1) by an Indiana statute which based a motor vehicle tax on carrying capacity, the load per axle, size of tires used, etc., of the vehicle in question (Eavey Co. et al. v. Department of Treasury of Indiana et al., 24 N.E. 2d 268 (Ind., Dec., 1939)); (2) by a Washington statute that allowed an administrative department to establish freight rates charged by trucks, but permitted railroads to file their own tariffs for administrative approval (Pacific Inland Traffic Bureau v. Schaaf, Director of Department of Public Service, 95 P. 2d 781 (Wash., Nov., 1939)); (3) by a Washington law that directed the county commissioners of the several counties to undertake certain coördinating activities and designated one body to act as coördinating agent, the Washington State Association of County Commissioners (State ex rel. Cruikshank et al. County Commissioners v. Baker, County Auditor, 97 P. 2d 638 (Wash., Jan., 1940)); (4) by a Washington law that divided taxpayers for the purpose of correcting assessments and permitting refunds into two classes based on the amount of the claimed error (State ex rel. Northern Pacific Railway Co. v. Henneford et al., Tax Commissioners, 99 P. 2d 616 (Wash., Mar., 1940)); (5) by a Kentucky law that allowed the sale of alcoholic beverages in drug stores, hotels, and private clubs within 200 yards of a church, school, or hospital if permitted by a state administrator, but not allowing any other retailing of liquor within the proscribed district without the consent of the institution affected (Beacon Liquors v. Martin et al., 131 S.W. 2d 446 (Ky., May, 1939) ); (6) and by a city ordinance of a Georgia city imposing a license tax for raising revenue upon dairymen milking more than six cows and delivering the milk in the city, in addition to subjecting all dairies to regulation (Rossman et al. v. City of Moultrie et al., 7 S.E. 2d 270 (Ga., Feb., 1940)).
44 The court declared that the unexplained absence of the attorney was “a most peculiar thing…”
45 Chenault v. Commonwealth, 138 S.W. 969 (Ky., Mar., 1940).
46 Commonwealth ex rel. Schultz v. Smith, Warden (Super, ct.), 11 A. 2d 656 (Pa., Mar., 1940). Cf. Harris v. Norris, Sheriff, 4 S.E. 2d 849 (Ga., Sept., 1939). See also Commonwealth v. Cunningham (Super. ct.), 9 A. 2d 161 (Pa., Nov., 1939), in which case a speech by a special prosecutor instructing the jury on principles of law in the absence of the accused and his counsel was held to constitute denial of counsel.
47 Alexander v. O'Grady, Warden, 290 N.W. 718 (Neb., Mar., 1940). See also Davis v. O'Grady, 291 N.W. 82 (Neb., Mar., 1940).
48 Jackson v. State, 193 S. 417 (Ala., Jan., 1940). To the contention of one appellant that the failure of an attorney appointed by the court to defend him properly amounted to denying him his constitutional right to counsel, the court held that the convicted person had been afforded due process of law. Aldridge, Sheriff, v. Williams, 4 S.E. 2d 469 (Ga., Sept., 1939).
49 Rose v. State, 10 A. 2d 617 (Md., Jan., 1940). Relative to the supposed at tempt on the part of the state of Texas to adopt a new practice and summon Negroes for jury service, see Smith v. State, 136 S.W. 2d 842 (Texas, Feb., 1940).
50 Wharton v. People, 90 P. 2d 615 (Colo., May, 1939). Compare two civil cases, Marvin Drug Co. v. Couch (Ct. Civ. App.), 134 S.W. 2d 356 (Texas, Dec., 1939) (a juror became insane during suit and was excused), and Lee v. Baltimore Hotel Co., 136 S.W. 2d 695 (Mo., Dec., 1939) (one by falsely impersonating another was placed on a jury).
51 State ex rel. Pearson v. Probate Court of Ramsey County et al., 287 N.W. 297 (Minn., Aug., 1939). The Michigan supreme court in 1938 held a similar but more drastic statute void as denying the right to trial by jury. People v. Frontzcak et al., 281 N.W. 534 (Mich., Oct., 1938).
52 The fact that this decision has been sustained by the United States Supreme Court suggests that other states may soon follow Minnesota's lead. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County et al., 60 S. Ct. 523 (Feb. 26, 1940).
53 People v. Dalpe, 21 N.E. 2d 756 (Ill., June, 1939).
54 Stump v. State, 92 P. 2d 616 (Okla., June, 1939).
55 Hammond v. State, 137 S.W. 2d 1042 (Texas, Mar., 1940).
56 Matthews v. State, 93 P. 2d 549 (Okla., Aug., 1939). See also Barfield v. State, 99 P. 2d 544 (Okla., Feb., 1940).
57 People v. Clifford, 98 P. 2d 272 (Colo., Jan., 1940).
58 Shockley v. State, 133 S.W. 2d 630 (Ark., Dec., 1939). See also People v. Kynette et al. (Dist. Ct. of App.), 97 P 2d 287 (Cal., Dec., 1939), in which the contention of the accused that the prosecution could not introduce at a trial evidence showing that the defendant had refused to testify before the grand jury was sustained on the ground that the introduction of such evidence would amount to self-incrimination.
59 The constitutions of Connecticut, Maryland, North Carolina, Vermont, and Massachusetts contain no privilege against double jeopardy.
60 Baker et al. v. Commonwealth, 132 S.W. 2d 766 (Ky., Oct., 1939). See also Yoder v. State, 90 P. 2d 669 (Okla., May, 1939).
61 State v. Reynolds, 131 S.W. 2d 552 (Mo., Sept., 1939).
62 Richter v. Harris et al. (Ct. of App.), 7 S.E. 2d 432 (Ga., Mar., 1940).
63 State ex rel. de Armas et al. v. Platt, District Judge, 192 So. 659 (La., Nov., 1939).
64 Bristol-Myers Co. v. Webb's Cut Rate Drug Co., Inc., 188 So. 91 (Fla., May, 1939).
65 Robinson v. Florida Dry Cleaning and Laundry Board, 194 So. 269 (Fla., Feb., 1940). The Pennsylvania superior court held that the State Fair Sales Act “offends against the due process clause of the Constitution … and the Bill of Rights … in that its scope is not sufficiently limited.” Commonwealth v. Zasloff (Super. ct.), 8 A. 2d 801 (Pa., Oct., 1939). See also Lief v. Packard-Bamberger & Co., Inc., 8 A. 2d 291 (N.J., Sept., 1939).
66 See also footnote 42 above.
67 291 U.S. 502 (Mar. 5, 1934).
68 See “Power of Legislature to Delegate Legislative Authority to Administrative Board,” Fordham Law Rev., Vol. 9, pp. 275–278 (May, 1940).
69 State v. Maitrejean, 192 So. 361 (La., Nov., 1939). Cf. Noyes, Commissioner of Agriculture and Markets, v. Erie and Wyoming Farmers Coöperative Corporation, 22 N.E. 2d 334 (N.Y., July, 1939), and Savage et al. v. Martin, Governor, et al., 91 P. 2d 273 (Ore., June, 1939).
70 U.S. v. Certain Lands in the City of Louisville (6 Cir.), 78 Fed. 2d 684 (1935).
71 Lennox et al. v. Housing Authority of City of Omaha et al, 290 N.W. 451 (Neb., Feb., 1940).
72 In re Brewster Street Housing Site in City of Detroit, 289 N.W. 493 (Mich., Dec., 1939).
73 Barber et al. v. Housing Authority of the City of Rome, 5 S.E. 2d 425 (Ga., Oct., 1939).
74 Allydonn Realty Corporation et al. v. Holyoke Housing Authority et al., 23 N.E. 2d 665 (Mass., Nov., 1939).
75 Laret Investment Company v. Dickmann, Mayor, et al., 134 S.W. 2d 65 (Mo., Dec., 1939).
76 Chapman v. Huntington, West Virginia, Housing Authority et al., 3 S.E. 2d 502 (W.Va., June, 1939).
77 23 N.E. 2d 665 (Mass., Nov., 1939).
78 111 Mass., 454 (Mass., Mar., 1873).
79 In 1912, the supreme judicial court, relying on Lowell v. Boston, 111 Mass. 454, advised that a proposed homestead law for industrial workers was unconstitutional in that it called for the expenditure of public funds for a private purpose. Opinion of Justices, 98 N.E. 611 (Mass., May, 1912).
80 In re Opinion of the Justices, 22 N.E. 2d 49 (Mass., June, 1939).
81 State v. Danberg, 6 A., 2d 596 (Del., May, 1939). See also State v. Garrubo, 10 A. 2d 635 (N.J., Jan., 1940), and Jones v. Bontempo (Ct. of Com. Pleas), 8 U.S. L. Wk. 266 (Ohio, Jan. 15, 1940).
82 See “Barber-shop and Beauty Parlor Legislation,” Virginia Law Rev., Vol. 26, pp. 928–41 (May, 1940).
83 This act established new presumptions of employer's negligence and also required the payment of $1,500 to the state for the death of any employee leaving no dependents, when death would have been compensable if he had had dependents.
84 Rich Hill Coal Co. et al. v. Bashore, Secretary of Labor and Industry, 7 A. 2d 302 (Pa., Apr., 1939).
85 “An act prohibiting the employment of men, women, or minors in any industry or occupation within this state under conditions of labor detrimental to their health and morals; prohibiting the employment of women workers in any industry within this state at wages which are not adequate for their maintenance.”
86 Associated Industries of Oklahoma et al. v. Industrial Welfare Commission et al., 90 P. 2d 899 (Okla., May, 1939).
87 Also, the majority stated that it was not concerned with economic questions, and that its task was limited to passing on the constitutionality of laws.
88 See cases discussed above, footnotes 10, 11, 18, 23, 42.
89 Otis v. Los Angeles County, 70 P. 2d 633 (Cal., Aug., 1937).
90 The immediate consequence of this decision was a flood of suits for refunds.
91 Southern Service Co., Ltd. v. Los Angeles County, 97 P. 2d 963 (Cal., Jan., 1940). Affirmed by U. S. Supreme Court, per curiam 60 S.Ct. 979 (May 6, 1940).
92 McCombs et al. v. Dallas County et al. (Ct. of Civ. App.), 136 S.W. 2d 975 (Texas, Feb., 1940). For a study of overlapping tax assessments in Texas and suggestions for their elimination, see M. G. Toepel, “The Assessment of Property for ad valorem Purposes in Texas Cities,” University of Texas Publication 3931, Austin (Aug., 1939). See also Rosebud County v. Flinn et al., 98 P. 2d 330 (Mont., Jan., 1940), in which the Montana supreme court examined the application of a provision of the state constitution denying the legislature the power to levy taxes within a county for county purposes. A statute provided that in a situation where property is stolen in one county and taken to another, either of the counties may prosecute, and that the county that conducted the prosecution could compel the other county to bear half of the cost of conducting the case. In an action by one county against another under this statute, the county proceeded against denied liability, grounding its claim on the above-mentioned constitutional provision and the consequent invalidity of the statute. The court rejected this contention. The power to define crime and punish criminals, it stated, is a power inherent in the state. This, the court declared, was not an example of the legislature laying a tax in one county. Rather, this was an instance of the exercise of a legislative power to devise equitable means for criminal prosecutions.
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