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Published online by Cambridge University Press: 02 September 2013
More than ten years ago, the Earl of Birkenhead, former Lord Chancellor of Great Britain, speaking before the American Bar Association, expressed the belief that it was a question for the future to determine whether the barriers which the framers of the constitutions placed upon the complete freedom of legislative assemblies in the United States will prove equal to the emergencies as they arise and will be as adaptable to the stress and strain of political exigencies as the more flexible and more democratic arrangements of the British constitution. “Your constitution,” he remarked, “is expressed and defined in documents which can be pronounced upon by the Supreme Court. In this sense, your judges are the masters of your executive. Your constitution is a cast-iron document. It falls to be construed by the Supreme Court with the same sense of easy and admitted mastery as any ordinary contract. This circumstance provides a breakwater of enormous value against ill-considered and revolutionary changes.” On the other hand, so far as England is concerned, the genius of the Anglo-Saxon people has, rightly or wrongly, refused to shackle in the slightest degree the constitutional competence of later generations. Any law of Great Britain can be altered by Parliament and no court may challenge the constitutional force of an act of Parliament. It is on the whole premature, thought Lord Birkenhead, to decide whether you or we have been right.
2 Earl of Birkenhead, “Development of the British Constitution in the Last Fifty Years,” 9 Amer. Bar Assoc. Jour. (Sept., 1923), 578Google Scholar.
3 Delegations of power were declared illegal in Wylie v. Phoenix Assur. Co. 22 P. (2d) 845 (June, 1933, Ariz.); Sterling Refining Co. v. Walker 25 P. (2d) 312 (Aug., 1933, Okla.); Sclureson v. Walsh, 187 N.E. 921 (Oct., 1933, Ill.); and Goodlove v. Logan 251 N.W. 39 (Nov., 1933, Ia.).
4 People v. La Fetra, 230 N.Y. 429, 442 (1921).
5 Blaisdell v. Home Building and Loan Association, 249 N.W. 334 (July, 1933).
6 Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934). See note on “Home Building and Loan Case,” with comment on the probable validity of California's deficiency judgment stay law, civil code section 2924 1/2, 22 Calif. Law Rev. (March, 1934), 350Google Scholar.
7 State v. Klein, 249 N.W. 118 (June, 1933).
8 Citing especially Howard v. Bugbee, 24 How. 461 (1860).
9 Ex parte Milligan, 4 Wall. 2, 121 (1866).
10 State v. Worten, 29 P. (2d) 1 (Oct., 1933). See also Life Insurance of Virginia v. Sanders, 62 S. W. (2d) 348, and Murphy v. Phillips, 63 S.W. (2d) 404 (Sept., 1933), in which a Texas court of civil appeals held void a six months' stay of foreclosure sales. For a consideration of these cases and other decisions on the Texas statute, see Jeffers, Leroy, “The Texas Moratorium Law,” 12 Texas Law Rev. (June, 1934), 383Google Scholar.
11 Des Moines Joint Stock and Land Bank v. Nordholm, 253 N.W. 701 (April, 1934). See Russell v. Battle Creek Lumber Co., 252 N.W. 561 (Jan., 1934), holding valid in a per curiam opinion a Michigan moratorium law on the ground that the pertinent constitutional provisions are similar to those of Minnesota and the reasoning of the Home Building and Loan Case was applicable. With two justices dissenting, the Arkansas supreme court declared void a statute prohibiting deficiency judgments in mortgage foreclosure proceedings as involving an impairment of the obligation of contracts. Adams v. Spillyards, 61 S.W. (2d) 686 (June, 1933).
12 Sewer Improvement Dist. No. 1 v. Delinquent Lands 68 S.W. (2d) 80 (Feb., 1934). The section of the act held void in Adams v. Spillyards, supra, that in any foreclosure in which real estate is involved, the real estate securing the loan sought to be foreclosed shall be considered to be the value of the loan made irrespective of the amount which may be realized from the sale of such real property, was held markedly different from the one before the court.
13 Suring State Bank v. Giese, 246 N.W. 556 (Feb., 1933).
14 Feller, A. H., “Moratory Legislation: A Comparative Study,” 46 Harv. Law Rev. (May, 1933), 1080CrossRefGoogle Scholar. For a tabular analysis of moratory legislation in the United States, see ibid., pp. 1081 ff. Cf. also comments on recent legislation for the relief of mortgage debtors, 42 Yale Law Jour. (June, 1933), 1236.
15 Cf. “The Search for New Sources of Revenue,” 47 Harv. Law Rev. (Jan., 1934), 503CrossRefGoogle Scholar.
16 Diefendorf v. Gallet, 10 P. (2d) 307 (1932). See also Ludlow-Saylor Wire Co. v. Wollbrinck, 205 S.W. 196 (1918).
17 Culliton v. Chase, 25 P. (2d) 81 (Sept., 1933). During the last three years, thirteen states have adopted income tax levies. See 47 Harv. Law Rev., 503.
18 O'Connell v. State Board of Equalization, 25 P. (2d) 114 (July, 1933). Chief Justice Calloway and Justice Angstman thought the law could not stand because income is in every essential respect property.
19 In Minnesota and Idaho, income tax acts were passed by the legislature after proposed constitutional amendments permitting income taxes were defeated.
20 Reed v. Bjornson, 253 N.W. 102 (Mar., 1934). See Standard Lumber Co. v. Pierce, 228 P. 812 (1924), holding valid the Oregon graduated income tax. For an analysis of the conflicting views on the income tax, see Brown, Robert C., “The Nature of the Income Tax,” 16 Minn. Law Rev. (Jan., 1933), 126 ff.Google Scholar Mr. Brown concludes that “there are some slight analogies between the income tax and purely personal taxes; much stronger analogies between it and property taxes; and the strongest analogies of all between income and excise taxes.” Ibid., 145.
21 Since 1930, more than twenty states have adopted some form of a general sales tax. Cf. Shoup, Carl and Hainoff, Louis, “The Sales Tax,” 34 Columbia Law Rev. (May, 1934), 809CrossRefGoogle Scholar.
22 State v. Welsh, 251 N.W. 189 (Dec., 1933).
23 Bachrach v. Nelson, 132 N.E. 909 (1932). See this Review, Vol. 27, p. 757Google Scholar.
24 Winter v. Barrett, 186 N.E. 113 (May, 1933).
25 Reif v. Barrett, 188 N.E. 889 (Dec., 1933).
26 In re Senate Resolution No. 2, etc., 31 P. (2d) 352 (Dec., 1933). See dissent by Justices Butler, Bouck, and Holland.
27 Hubbell v. Herring, 249 N.W. 430 (July, 1933, Ia.).
28 State v. Kansas State Highway Commission, 28 P. (2d) 770 (Jan., 1934).
29 Michaels v. Barrett, 188 N.E. 921 (Jan., 1934, Ill.).
30 State v. Martin, 23 Pac. (2d) 1 (June, 1933).
31 Dickinson v. Talbott, 170 S.E. 425 (June, 1933).
31a Bee v. City of Huntington, 177 S.E. 539 (Sept., 1933). See Sly, John F., “Rebuilding in West Virginia: Fifteen Months of Legislation (1933–1934),” Public Affairs Bulletin, No. 7, Bureau of Government ResearchGoogle Scholar.
32 Berry v. Fox, 172 S.E. 896 (Jan., 1934).
32a See John F. Sly, op. cit., 12.
33 Walker v. Bedford, 26 P. (2d) 1051 (Oct., 1933).
34 Justices Butler, Bouck, and Holland thought the act should be sustained as a valid exercise of the police power. The exaction was regarded as an excise tax and as such covered by the police power, which “is the least limitable of the exercises of government.” “If this court,” said Justice Bouck, “could have decided in favor of the validity of the U.R. Act, I feel that the court would not only have been fairly within the principles of the constitutions of Colorado and the United States, but more in step with the march of human progress.” And Justice Holland believed that “we best uphold the constitution when we find that its elasticity will at least allow temporary measures to meet human needs.”
35 Hall v. Blau, 148 So. 601 (June, 1933). See also Wertz v. Shane, 249 N.W. 661 (July, 1933), holding that a taxpayer, on the attorney-general's refusal, may sue state legislators to compel repayment to the state treasurer of expense moneys unconstitutionally paid to them.
36 Farbo v. School Dist. No. 1 of Toole Co., 28 P. (2d) 455 (Dec, 1933, Mont.).
37 State v. Boynton, 30 P. (2d) 291 (March, 1934, Kan.). The fact that the present state debt approximated twenty-two millions was no doubt a consideration which influenced the court in arriving at its decision. See, however, the holding that the debts of the Rhode Island emergency public works corporation to the federal government for public works under the National Recovery Administration are debts of the corporation as a separate entity and not of the state, In re Opinion to Governor, 168 A. 748 (Dec., 1933).
38 Sholtz v. McCord, 150 So. 234 (Oct., 1933, F1a.).
39 State v. Koeln, 61 S.W. (2d) 750 (June, 1933).
40 Grieb v. National Bank of Kentucky's Receiver, 68 S.W. (2d) 21 (Dec., 1933). Consult Baker, Newman F., “Tax Delinquency—Legal Aspects,” 27 Illinois Law Rev. (June, 1933), 159Google Scholar.
41 State v. Hoy, 151 So. 1 (Oct., 1933, F1a.). See McNee v. Wall, 4 F. Supp. 496 (Aug., 1933), for decision invalidating an act providing for redemption of delinquent tax certificates in bonds in lieu of money as provided in the original contracts.
42 Milknit v. McNeeley, 169 N.W. 790 (June, 1933).
43 For other cases interpreting the phrase “equal protection of the laws,” involving condemnation of acts because of unreasonable classifications, see State v. Cummings, 63 S.W. (2d) 515 (Oct., 1933); Baker v. Braden, 24 P. (2d) 293 (Aug., 1933); and Harbert v. Mabry, 61 S.W. (2d) 652 (June, 1933); or of unreasonable discrimination, Ernesti v. City of Grand, 251 N.W. 899 (Dec., 1933).
44 See In re Jacobs, 98 N.Y. 98 (1885), and Lochner v. New York, 198 U.S. 45 (1905).
45 People v. Nebbia, 262 N.Y. 259 (July, 1933).
46 Nebbia v. New York, 54 S.Ct. 505 (1934).
47 Clack Co. v. Public Service Commission, 22 P. (2d) 1056 (June, 1933, Mont.).
48 State v. Gibbes, 172 S.E. 130 (May, 1933, S. Car.).
49 Ghingher v. Pearson, 168 A. 105 (July, 1933). For indications of the inclination of the courts to disfavor the state's sovereign right of priority, see note in 43 Yale Law Jour. (Jan., 1934), 510.
50 La Plata River & Cherry Creek Ditch Co. v. Hinder Lider, 25 P. (2d) 187 (July, 1933, Colo.). Justice Butler thought that the court in its decision had ignored the rule that each state is entitled to an equitable share of the waters of an interstate stream.
51 Riley v. Sweet, 149 So. 48 (May, 1933).
52 Field Packing Co. v. Glenn, 5 F. Supp. 4 (April, 1933). See also Capital Gas & Electric Co. v. Boynton, 22 P. (2d) 958 (June, 1933, Kan.), holding void as a denial of equal protection of the laws an act prohibiting the sale of gas appliances by those engaged in manufacturing, distributing, or selling gas.
53 In re Opinion of Justices, 166 Atl. 640 (May, 1933). Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); and Truax v. Corrigan, 257 U.S. 312 (1921) were cited with the comment that, despite criticisms, these decisions are the supreme law of the land.
54 Pacific Gas and Electric Company v. Railroad Commission, 5 F. Supp. 878 (Feb., 1934).
55 In re Consolidated Freight Co., 251 N.W. 431 (Dec., 1933).
56 Hamilton, Walton H., “Constitutionalism,” Enclyclopaedia of the Social Sciences, Vol. 4, p. 258Google Scholar.
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