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Published online by Cambridge University Press: 02 September 2013
For courts of forty-eight states to interpret forty-nine detailed organic acts with an eye toward maintaining limited federal government amid centralizing total war and a distracting national election, challenges not only the statesmanship of performers, but the discrimination of reviewers.
Collectively, the major state court decisions in the third year of the war point toward a resurgence of judicial power, a reëmphasis upon the rights and the place of the states and upon the legislative as opposed to the executive branch, a new period of exceptional interest and fertility in the growth of constitutional doctrine.
War, paradoxically, has bolstered as well as undermined the creed of states' rights. The pattern that has emerged from the small but growing number of federalism cases reveals state courts no longer content to make a virtue of necessity. “Little OPA” acts and ordinances are generally upheld. But expanded federal controls exercised administratively in fields long reserved to the states meet steadily mounting opposition—especially if they are not obviously crucial to the war effort or to the stability of a war economy. Even actions taken under those provisions of the Price Control Act which were deliberately framed to safeguard federal administrators from state-court interference have suffered nullification. Since the date of the Yakus and Willingham decisions, statutory construction has supplanted constitutional law as the medium for resolving those personal and delicate questions of the state judges' own powers under the Price Control act.
1 Chase v. Lujan, 149 P. (2d) 1003 (Mar., 1944).
2 Commonwealth ex rel. Dummit v. O'Connell, 181 S.W. (2d) 691 (June, 1944).
3 Tilton v. Herman, 64 S.E. 351.
4 Staples v. Gilmer, 32 S.E. (2d) 129 (Nov., 1944).
4a Illinois' constitution guarantees that “no elector shall be deemed to have lost his residence in the state by reason of his absence on business of the United States, or of this state, or in the military or naval service of the United States.” In deciding an election contest, the state supreme court thought it was clear that “absence,” as here used, meant “absence from the residence of the voter” rather than “absence from the state.” Many situations were foreseen where the voter might be absent from his residence for a long period when in state, federal, or military service and yet not be absent from the state. Since the object of the clause was to safeguard the franchise, the narrower construction was not favored. Tuthill v. Rendleman, 56 N.E. (2d) 375 (May, 1944).
5 Maddox v. Board of State Canvassers, 149 P. (2d) 112 (May, 1944).
6 Stanford v. Butler, 181 S.W. (2d) 269 (June, 1944).
7 Seay v. Latham, 182 S.W. (2d) 251 (Sept., 1944).
8 Browne v. Martin, 19 So (2d) 421 (Oct., 1944).
9 State ex rel. Graham v. Hall, 15 N.W. (2d) 736 (Sept., 1944). A recent survey shows that over one-fourth of the states have similar provisions. See Council of State Governments, Constitutional and Statutory Provisions of the States, Vol. 3, pp. 19–22 (Mar., 1945).Google Scholar
10 Roberts v. Cleveland, 149 P. (2d) 120, (N.M., May, 1944).
11 Burroughs v. Lyles, 181 S.W. (2d) 570 (June, 1944).
12 People v. Mailman, 59 N.E. (2d) 790 (Dec., 1944) aff. per curiam Special Sessions 49 N.Y.S. (2d) 733.
13 People v. Sell, 17 N.W. (2d) 193 (Jan., 1945).
14 City of Cleveland v. Piskura, 56 N.E. (2d) 683 (Feb., 1944).
15 This issue of delegation of legislative power by the state legislature both to state and to federal officials was raised by a 1943 North Dakota statute under which the governor had fixed the street and highway speed limit at thirty-five miles per hour. The statute authorized the governor to take such action by executive order in furtherance of coöperation with the federal government for the prosecution of the war “when requested” by federal officers or agencies and when recommended by the state highway traffic commission. The state supreme court struck down the executive order on the ground that it was not shown that there had been a request by federal officials, thus obviating any need to pass upon the constitutionality of the enactment. State v. Johnson, 16 N.W. (2d) 873 (Dec., 1944).
16 State ex rel. Moore v. Board of Education, 57 N.E. (2d) 118 (Mar., 1944).
17 The Wisconsin supreme court's handling of a National War Labor Board order provides sharp contrast. The order directed a paper company to include in its union contract a closed-shop clause which a Wisconsin board order required the company to leave out. The court disposed of the federal-state conflict in a single sentence: “This order [of the NWLB], having been issued in the exercise of the war powers of the executive in time of war, supplants and operates to suspend state action in regard to the same subject matter.” The court therefore ordered that “the above entitled matter remain in suspension in this court for the duration of the war or until such time as the order of the NWLB ceases to be effective.” International Brother hood of Papermakers v. Wisconsin Employment Relations Board, 15 N.W. (2d) 807 (Oct., 1944).
18 Soundview Pulp Co. v. Taylor, 150 P. (2d) 839 (July, 1944).
19 Twin Falls v. Hulbert, 156 P. (2d) 319 (Feb., 1945).
20 Speicher v. Sowell, 14 N.W. (2d) 651 (May, 1944).
21 Hurst v. Haak, 55 N.E. (2d) 594 (Oct., 1943).
22 Ex parte Porterfield, 147 P. (2d) 15 (Mar., 1944).
23 Hill v. State, 19 S. (2d) 857 (Fla., Nov., 1944).
24 Alabama State Federation of Labor v. McAdory, 18 So. (2d) 810 (May, 1945).
25 Of the numerous wartime state labor statutes regulating the internal affairs and limiting the external activities of labor unions, only Alabama's has so far been reviewed in its entirety by a state supreme court. In the decision (partly discussed above), which was watched because of the importance of the social and economic issues involved, and for its bearing on the constitutional fate of broadly similar laws in other Southern and Western states, the judges, by a four-to-two vote, sustained the act as a whole, but struck down three bitterly contested provisions. The majority sanctioned, as having “reasonable basis” in view of antagonistic interests, a drastic provision excluding, under criminal penalties, executive, professional, and supervisory employees from membership in unions which permitted it. A ban on the practice of exacting pay for work permits, which was limited to non-members of unions by an express exemption of initiation fees and dues, easily survived both general attack and the specific charge of fatal vagueness.
However, the principle of majority rule was held not to be sufficient justification for a prohibition against minority strikes. The right to strike for a legally justifiable purpose, argued the court, is personal and individual; it cannot be made to depend upon the will of others who are not the majority of a collective bargaining unit, whose connections and interests may differ from those of the striking minority, and who may not believe in or belong to a labor organization. Also invalidated was a section making it unlawful to refuse to handle or work on non-union materials. Emphasizing that the provision applied to the good faith protest of a single workman, made no reference to confederation, coercion, or malicious intent, and carried permissible heavy criminal penalties, the court held that it came close to infringing the involuntary servitude injunction of the Thirteenth Amendment and did violate “fundamental and basic civil rights” guaranteed by the Fourteenth Amendment. Finally, because it was inseparable from a similar restraint laid on organizations of employers which could not be included in the act without violating the “single subject” requirement of the state constitution, the court ruled out a provision forbidding union financial contributions to political parties or candidates without an independent determination of its constitutionality (AFL v. McAdory, supra).
Arkansas' relatively unimportant 1943 Labor Act, merely forbidding as a felony the use of force or violence or threats of the same to prevent any person from engaging in a lawful vocation, easily passed a constitutional test in the state supreme court. “No one would seriously contend,” the judges thought, “that force and violence, or intimidation and coercion due thereto, are within the pale of constitutional protection.” The difference between assaults directed primarily against the person and those against a person for the purpose of preventing him from pursuing an occupation was declared to be sufficient to justify the legislature in classifying the former as a misdemeanor and the latter as a felony. The second sort not only deprives one of the fruits of his labor, but “in a measure affects the entire economic fabric of the country.” (Smith v. State, 179 S.W. (2d) 185 (Apr., 1944). For a comprehensive discussion of wartime state labor statutes, see, Dodd, , “Some State Legislatures Go to War—On Labor Unions,” Iowa Law Review, Vol. 29, p. 148 (1943–1944).Google Scholar
26 American Federation of Labor. v. Reilly, 155 P. (2d) 145 (Dec., 1944).
27 Resolving issues of a different sort, the supreme judicial court of Massachusetts declined an invitation of the city of Somerville to reconsider and repudiate the majority views expressed in an earlier advisory opinion, namely, that a statute was unconstitutional which provided for the exclusion of all married women with husbands capable of supporting them from employment in the public service. Encouraged by an apparent departure from this rule when the state court permitted a ban on married women as public school teachers, the city, by ordinance and executive policy, adopted a rule of marital exclusion from all municipal departments, expressly excepting “a married woman legally separated or divorced … or … whose husband is unable to support her, by reason of physical or mental incapacity.” The judges, this time unanimously, reaffirmed the prior conclusion of unconstitutionality, distinguishing the school teacher case on the ground that it dealt “with a particular kind of public employment the nature of which was such that the exclusion of married women … might be found to have some rational relation to the public welfare.” To bar married women as a class from all public employment of every nature, solely on account of their marital status, deprives them “of their constitutional rights to equal opportunity for selection for public employment upon grounds having no substantial relation to the public welfare.” Mayor of Somerville v. Dist. Court of Somerville, 57 N.E. (2d) 1 (Sept., 1944).
28 James v. Marinship Corp., 155 P. (2d) 329 (Dec., 1944).
29 Judicial action here, the court declared, does not violate state or federal guarantees of civil liberties. The court pointed to recent Supreme Court cases restricting the free-speech protection of peaceful picketing and to the remark of Justice Brandeis in Dorchy v. Kansas, “A strike may be illegal because of its purpose, however orderly the manner in which it is conducted,” for the proposition that a state may impose limitations upon concerted labor action—even upon peaceful, truthful picketing—if the end sought is condemned by state law and public policy.
30 The following statement was characteristic of the vaulting power of Chief Justice Gibson's opinion, the argument of which moved throughout in the grand manner, turning even embarrassments to advantage: “Although the constitutional provisions have been said to apply to state action rather than private action, they nevertheless evidence a definite national policy against discrimination because of race or color.”
31 Reëntrance of the courts into the field of labor control has not been confined to the prevention of racial discrimination. In two cases, the courts acted to restrain other forms of arbitrary and undemocratic union action. The New Jersey chancery court, with particular application to white workers seeking readmission to the union or upgrading, reaffirmed its earlier announced doctrine that unions having a monopoly of labor opportunity “must be democratic and admit to their membership all those reasonably qualified for their trade,” upon compliance with rules and by-laws reasonably appropriate for the stability and usefulness of the association.” Carrol v. Local 269, International Brotherhood of Electrical Workers, 31 A. (2d) 223 (Mar., 1943). A Texas court directed an international union to reinstate a local on the ground that the order suspending it, though otherwise valid, had not met due process requirements of charges, notice, and hearing. The facts were that the national president, in carrying out the union's wartime no strike pledge, had nullified the local's order suspending members who, in violation of a local working rule, had taken employment upon a military installation with non-union employees. Notice to the local that its charter would be lifted if it refused to abide by the president's action was judicially viewed as inadequate procedure. In order to main tain a “desirable” consistency with an earlier California appellate decision, the court held that, after the recalcitrant act of the local, the general organization must go further and “prefer charges against the local, give notice thereof, and conduct a hearing to determine whether or not the local should be suspended.” United Brotherhood v. Carpenters Local 14, 178 S.W. (2d) 558 (Jan., 1944).
31a For evidence of how the “Ninth Circuit law” of the seventies promoted the growth of doctrines favorable to laissez faire and broadened judicial review, see Graham, , “Justice Field and the Fourteenth Amendment,” Yale Law Journal, Vol. 52, p. 851, at pp. 881–8 (Sept., 1943).CrossRefGoogle Scholar
32 Bautista v. Jones, 155 P. (2d) 343 (Dec., 1944).
33 A concurring judge mentioned the presence of evidence that the union had been motivated by racial prejudice.
34 (Omitted; error in numbering.)
35 Railway Mail Ass'n v. Corsi, 56 N.E. (2d) 721 (July, 1944). Affirmed by U.S. Supreme Court, June 18, 1945. 13 U.S. Law Week 4576.
36 People v. Zammora, 152 P. (2d) 180, (Oct., 1944).
37 Terrell Wells Swimming Pool. v. Rodrigues, 182 S.W. (2d) 825 (Mar., 1944).
38 Sanchez v. State, 181 S.W. (2d) 87 (May–June 1944).
39 Weems v. State, 185 S.W. (2d) 431 (Nov., 1944).
40 A six-to-three decision handed down by the Supreme Court on June 4, 1945, affirming another decision of the Texas court of criminal appeals suggests that developments in the immediate future relating to discrimination in the selection of jurors in Texas may center about the practice of limiting Negro jury membership to one per jury. Though the Supreme Court majority refused to reverse the second conviction of a Negro murderer where this practice had been followed at retrial, holding instead that the record showed an endeavor on the part of state courts to comply with federal constitutional requirements, Justice Murphy, in a dissenting opinion, argued that Negroes must be “considered as prospective veniremen … without numerical or proportional limitation.” Chief Justice Stone and Justice Black dissented sub silentio, and Justice Rutledge concurred only in the result. The majority, moreover, made clear that it reserved judgment whether “purposeful limitation of jurors by race to the approximate proportion that eligible jurymen of the race so limited bears to the total eligibles” violated the Fourteenth Amendment. Akins v. State of Texas, 13 U.S. Law Week 4467. Cf. the state court opinion, 182 S.W. (2d) 723, wherein the court declined to express any opinion whatever upon these novel issues, other than to sav that the record revealed no discrimination.
41 Watkins v. State, 33 S.E. (2d) 325 (Feb., 1945). For further evidence of the exceedingly delicate character of Supreme Court-state court relations, especially in matters affecting the South, see Screws v. United States, decided by the Supreme Court May 7, 1945. To break a threatened deadlock that would have prevented disposition of the case, Justice Rutledge unwillingly concurred in the Court's reversal of a Georgia sheriff's conviction under federal law for what everyone agreed was a brutal and revolting killing of a Negro prisoner. Strongly criticizing the position of the three-judge minority, who favored outright invalidation of the eighty-year-old section of the Civil Rights Act, as well as the position of the prevailing judges, who saved the statute by emphasis on the word “willfully,” his opinion frankly referred to “the fear grounded in concern for possible maladjustment of federal-state relations if this and like convictions are sustained.”
42 State v. Anderson, 18 So. (2d) 33 (Apr., 1944); same, 20 So. (2d) 288 (Nov., 1944). Cf. State v. Augusta 7 So (2d) 177 (Mar., 1942).
43 State v. Lewis, 11 So. (2d) 337 (Jan., 1943).
44 Constitutional Conventions (4th ed., 1887; 1st ed. 1867). The thesis, as indicated in the preface, developed as a counter to the pretensions of Copperhead elements who threatened to dominate Illinois conventions in 1862–66. See also Dodd, Walter F., Revision and Amendment of State Constitutions (1910)Google Scholar, Chap. 3.
45 Staples v. Gilmer, supra, note 4.
46 Staples v. Gilmer (2d case), 33 SE. (2nd) 49 (Feb., 1945). Curiously neither the majority nor the dissenting opinion alluded to the fact that the basic question in this case had arisen once before in Virginia history, and that on that occasion the court by-passed it, holding merely that even though the 1901 convention had disregarded the legislature's express requirement and promulgated a new constitution without submitting it to popular vote, the constitution thus in effect was the “only rightful, valid and existing constitution of this state.” Taylor v. Commonwealth, 101 Va. 829. For a critical discussion of the majority's opinion in the second Staples case, see Gooch, R. K., “The Recent Limited Constitutional Convention in Virginia,” Va. Law Rev., Vol. 31, pp. 708–726 (June, 1945).CrossRefGoogle Scholar
47 State ex rel. News Corp. v. Smith, 184 S.W. (2d) 598 (Jan., 1945).
48 Gage v. Jordan, 147 P. (2d) 387 (Mar., 1944).
49 Tishman v. Sprague, 55 N.E. (2d) 858 (June, 1944), and earlier cases there cited.
50 Stenson v. Dignan, 13 N.W. (2d) 202 (Feb., 1944).
51 In re Fay, 52 N.E. (2d) 97 (Nov., 1943).
52 Opinion of the Justices, 37 A. (2d) 478 (May, 1944). For more elaborate opinions to the same effect, see Opinions of the Justices, 22 N.E. (2d) 261 (1939, 3 N.E. (2d) 218 (1936), both by the supreme judicial court of Massachusetts.
53 State v. Yelle, 110 P. (2d) 162; see this Review, Vol. 35, p. 685, n. 12.
54 Collins v. Riley, 152 P. (2d) 169 (Oct., 1944).
55 Rhoads v. Miller, 182 S.W. (2d) 248 (June, 1944).
56 Motor Haulage Co. v. Maltbie, 57 N.E. (2d) 41 (July, 1944).
57 Marrs v. Railroad Commission, 177 S.W. (2d) 941 (Jan., 1944).
58 Illinois Central Railroad Co. v. Illinois Commerce Commission, 56 N.E. (2d) 432 (May, 1944).
59 Utah Power & Light Co. v. Public Service Commission, 152 P. (2d) 542 (Oct., 1944).
60 Market Street Railway Co. v. R. R. Commission, 150 P. (2d) 196 (July, 1944).
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