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State Constitutional Law in 1945–46
Published online by Cambridge University Press: 02 September 2013
Extract
The end of the momentous year symbolized by the physical scientists' entrance into national politics and political scientists' introduction to nuclear physics finds state appellate courts focusing on problems of business and reconversion; professionally critical, if not apprehensive, of the course taken by their superior in Washington; dubious of the behavior of organized labor, yet divided upon both the desirability of judicial discipline and the proper means of administering it; maintaining their separate, often irreconcilable, views on regulation of business and agriculture; above all, enjoying, like their superiors and predecessors, the historic, self-imposed duty of fitting constitutional garments to institutional girth.
How to constrict the swollen national waistline without risking grave internal pressures taxes ingenuity to the utmost. On the whole, a prudent realism still is evident in dealing with problems of price control. The restlessness and doubts noted last year, however, have persisted and find freer expression. Paradoxically, state enforcement of federal penalties is generally sustained, despite ancient but dissolving dogmas to the contrary; whereas coöperative state or municipal action designed to reinforce and supplement the Emergency Price Control Act has suffered serious reverses.
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- Copyright © American Political Science Association 1946
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1 Within six weeks after V-E Day, price control became a nightmare to the high court of Massachusetts. Congress, by its “ingenious legislative device” which left state courts only a “truncated, piecemeal … jurisdiction,” had “put in default” the “great mass of persons,” “foreclosed their right to object,” compelled them to “obey or pay the penalty no matter how outrageously the regulation might violate their constitutional rights.” Shaffer v. Leimberg, 62 N.E. (2d) 193 (June, 1945). See infra, note 6.
2 Davis v. State, 23 So. (2d) 85 (July, 1945, reh. den. Sept., 1945). “We think this question is put at rest by … Smith v. Allwright … 321 U.S. 649.”
3 For the state courts' reaction to the Southeastern Underwriters decision, 322 U.S. 533 (1944), overruling Paul v. Virginia, 75 U.S. 168 (1869), and holding the insurance industry to be regulable as interstate commerce, see Prudential Insurance Co. v. Murphy, 35 S.E. (2d) 586 (S.C. Supreme Court, Sept., 1945); In re Insurance cases, 161 P. (2d) 726 (Kan. Supreme Court, Sept., 1945); State v. Prudential Ins. Co., 64 N.E. (2d) 150 (Ind. Supreme Court, Dec., 1945).
4 See infra, notes 33 and 34, for cases attempting to undermine the Bridges decision.
5 See note 1, supra.
6 High courts in ten states have passed on these questions. Eight have held in favor of state court jurisdiction. In Massachusetts [Shaffer v. Leimberg, 62 N.E. (2d) 193 (June, 1945)] and Virginia [Shaubach v. Anderson, 36 S.E. (2d) 539 (Jan., 1946)], following precedents under the Fair Labor Standards and other federal acts, consumers' actions were thought to be “of a civil nature, remedial of a private wrong and therefore not penal,” “even though the damages consist of a multiple of the actual loss or … are assessed without regard to the actual loss.” These courts thus circumvented the rule of the Antelope and took jurisdiction. Judges in Minnesota [Desper v. Warner Holding Co., 19 N.W. (2d) 62 (May, 1945)] and Maryland [Lambros v. Brown, 41 A. (2d) 78 (Jan., 1945)] while stating or implying a belief that the consumers' suits were remedial, concluded that state courts should enforce “civil liabilities created by acts of Congress, whether … penal or … remedial.” The grounds for their conclusion—whether constitutional compulsion, the complementary nature of the federal-state relationship, or inter-sovereign reciprocity—remained undisclosed. The supreme court of Oregon [State ex rel. Bowles v. Olson, Judge, 151 P. (2d) 723 (Sept., 1944)] reached the same conclusion, with a like absence of reason, but without committing itself as to the penal or remedial character of the action. Connecticut's highest court [Lapinsky v. Capocino, 38 A. (2d) 592 (June, 1944)] felt itself bound by the Second Employers' Liability Cases. It argued first, that the consumer was “seeking a recovery which will inure to his benefit alone,” and therefore that there were not present the practical difficulties involved in the enforcement of a “strictly penal provision”; second, that, in any event, “the state court is not lending itself to the enforcement of the law of another sovereignty, because the law it applies, though of federal origin, is just as much the law of this state as a statute enacted by our own legislature.” For a discussion of the California and Illinois cases, see this Review, Vol. 38 (Aug., 1944), pp. 679–681.
The New Jersey court of errors and appeals took a different tack, and one which raised, but which left unanswered, troublesome issues under the supremacy clause. The fact that there is “no relationship between the amount permitted to be recovered … and the sum in which the plaintiffs were injured,” together with the further fact that the Administrator may sue if the consumer does not, was held to make the “damages” a penalty. Therefore a suit for their recovery was not cognizable in the state district court which under the state statutes had jurisdiction of “every action of a civil nature at law, or to recover any penalty imposed or authorized by any law of this state, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of five-hundred dollars.” Thus while a consumer's action was held to be penal and enforcement was refused, the court rested its decision on the limited jurisdiction conferred on the lower court by the New Jersey statute rather than on the rule of the Antelope. It is significant, however, that a penalty imposed by a constitutional law of Congress was held not to be “a penalty imposed … by any law of this state” within the meaning of the New Jersey statute. Whether this discrimination against federal rights of action violated Article VI of the federal constitution was not discussed in the opinion. [Zuest v. Ingra, Same v. Farina, 45 A. (2d) 810 (Jan., 1946)]. Many or these were purchaser-plaintiff, administrator-intervenor cases, but the adminis-trator-intervenor feature was entirely ignored.
7 23 U.S. 66, 123 (1825).
8 Bowles v. Barde Steel Company and four other cases, 164 P. (2d) 692 (Dec., 1945).
9 Robinson v. Norato, 43 A. (2d) 467 (July, 1945).
10 People v. Lewis, 64 N.E. (2d) 702 (Dec., 1945).
11 Twentieth Century Associates, Inc. v. Waldman, 63 N.E. (2d) 177 (July, 1945).
12 Sbrolla v. Hess, 43 A. (2d) 498 (Circuit Court, Atlantic County, July, 1945; aff. 44 A. (2d) 36, Sup. Ct., Oct., 1945).
13 City of Cleveland v. Piskura, 60 N.E. (2d) 919 (Apr., 1945).
14 For a discussion of the Alabama, Florida, and Colorado cases, see this Review, Aug., 1945 (Vol. 39), pp. 699–702.
15 323 U.S. 516 (1945).
16 A.F.L. v. McAdory, 65 S. Ct. 1384; d.O. v. McAdory, 65 S. Ct. 1395, (June, 1945).
17 65 S. Ct. 1373 (June, 1945).
18 A.F.L. v. Mann, 188 S.W. (2d) 276 (April 4, 1945, reh., May 9, 1945, sec. reh. den., May 30, 1945).
19 239 U.S. 33 (1915).
20 A.F.L. v. Frank Langley, Atty-Gen., 168 P. (2d) 831 (May 3, 1946).
21 For evidence of how deeply involved the free speech questions have become' see Hennigh et al. v. International Brotherhood of Teamsters et al., 11 CCH Labor Cases 63,094 (Colo. Dist. Ct. of Denver, Feb., 1946) and the following decisions of the California superior court taking opposite views of the constitutionality of California's Hot Cargo and Secondary Boycott Act: Union Ice Co. v. Sales Drivers' Union, 11 CCH Labor Cases, 63,156 (San Diego court holding the act unconstitutional, Mar. 18, 1946); Ramser v. Van Storage & Furniture Drivers Local, 11 CCH Labor Cases, 63,137 (Los Angeles court upholding the act, Apr. 30, 1946).
22 Westinghouse Electrical Corp. v. United Electrical Radio, etc., Workers, C.I.O., 46 A. (2d) 16 (Mar., 1946).
23 Phelps-Dodge Copper Products Corp. v. United Electrical, etc., Workers, 46 A. (2d) 453 (Ct. of Chanc, Mar., 1946).
24 Harper v. Brennan, 18 N.W. (2d) 905 (May, 1945).
25 301 U.S. 468 (1937).
26 315 U.S. 769 (1942).
27 Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293 (1943).
28 312 U.S. 321 (1941).
29 310 U.S. 88 (1940).
30 323 U.S. 516.
31 State ex rel Lumber and Sawmill Workers v. Superior Court for Pierce County, etc., 164 P. (2d) 662 (Dec., 1945).
32 Park & Tilford Import Corp. v. International Brotherhood of Teamsters, 165 P. (2d) 891 (Jan., 1946, Hearing den., Feb. 28, 1946).
33 Pennekamp v. State, 22 S. (2d) 875, (July, 1945); unanimously reversed by U. S. Supreme Court June 3, 1946. 14 U. S. Law Week, 4386.
34 Ex parte Craig and two other cases. 193 S.W. (2d) 178 (Texas Ct. of Criminal Appeals, Feb., 1946; reh. den., Apr., 1946). Students of political and judicial ethics will find interesting material for study in State ex rel. Hall v. Niewoehner, 155 P. (2d) 205, wherein the majority of the Montana supreme court found guilty of contempt an attorney who by formal motion and circular letters had attacked two members of the court for having failed to disqualify themselves in a previous case. Both the majority and minority opinions presented the unseemly spectacle of high judges publicly attacking the motives and integrity of their colleagues.
35 The judges appeared to be unaware or unconcerned that the Supreme Court in the Bridges and Los Angeles Times cases had held that even the presence of such threats did not render the comments contemptuous.
36 Commonwealth v. Isenstadt, 62 N.E. (2d) 840 (Sept., 1945).
37 People v. Winters, 63 N.E. (2d) 98, (July, 1945); cert. gr. 66 S. Ct. 339, argued Mar. 27, 1946; restored to docket for reargument, Apr. 22, 1946.
38 Gospel Army v. City of Los Angeles, 163 P. (2d) 704 (Nov., 1945).
39 310 U.S. 296 (1940).
40 319 U.S. 105 (1943).
41 Marsh v. State, 66 S. Ct. 276 (Jan., 1946), reversing Marsh v. State, 21 S. (2d) 558 (Ala. ct. of app. Jan. 9, 1945; reh. den., Feb. 13, 1945) 21 S. (2d) 564 (Ala. Sup. Ct. Mar. 29, 1945, cert. den.).
42 See People v. Vaughan, 150 P. (2d) 964 (1944), wherein the appellate department of the Los Angeles superior court rejected arguments that loud knocking on rooming house doors at 9:30 Sunday morning, over the manager's objections, was conduct protected by the constitutional guarantees of freedom of speech and religion.
43 People v. Bohnke, 38 N.E. (2d) 478 (N.Y. ct. of app., 1941) cert. den., 316 U.S. 667; State v. Martin, 5 S. (2d) 377; (La. Sup. Ct., 1941; Massachusetts v. Stanton, 48 N.E. (2d) 678 (Mass. Sup. Jud. Ct., 1943); People v. Dale, 47 N.Y. S. (2d) 703 (Utica City Court, 1944). Cf. Martin v. City of Struthers, 319 U.S. 141 (1943).
44 People v. Noble, 158 P. (2d) 225 (Apr., 1945; reh. den. May, 1945).
45 For this reason, cases have been cumulated from 1942 to date.
46 Grant, J. A. C., “The Guild Returns to America,” Journal of Politics, Vol. 4, pp. 303, 336 (1942).CrossRefGoogle Scholar
47 State v. Cromwell, 9 N.W. (2d) 914 (1943).
48 Sullivan v. DeCerb, 23 So. (2d) 571 (Nov., 1945).
49 Krebs v. Thompson, 56 N.E. (2d) 761 (1944).
50 Legislative exclusion of an enterprise from an area of its market, especially when that area is left open to others, generally receives short shrift from the courts. Thus a unanimous Illinipis supreme court voided a legislative distinction between banks and trust companies in an act which had forbidden small loan concerns to pledge notes and securities of their borrowers except with banks authorized to do business in the state. In Illinois, banks and trust companies are subject to the same official and are both under bond for the faithful performance of duties. Metropolitan Trust Co. v. Jones, 51 N.E. (2d) 256 (1943).
The Illinois court, lavish in its use of the judicial veto, also struck down a statute creating a state building authority empowered to construct and operate buildings suitable for the state's office needs in cities of 75,000 or more. Extraordinary features of the law constituted the governor, lieutenant governor, and five other high elective state officers, together with two appointive members, the body corporate charged with determining the state's needs for such buildings; and empowered the corporation, subject to the governor's approval, to issue up to $12,000,000 of income bonds to finance the cost of acquiring, constructing, and maintaining and operating the property. People v. Green, 47 N.E. (2d) 465 (III., 1943).
51 Noble v. Davis, 161 S.W. (2d) 189 (1942).
52 State Board of Barber Examiners v. Cloud, 44 N.E. (2d) 972 (1942).
53 LaForge v. Ellis, 154 P. (2d) 844 (Jan., 1945).
54 State v. Polakow's Realty Experts, Inc., 10 So. (2d) 461 (1942).
55 Jack Lincoln Shops, Inc. v. State Dry Cleaners Board, 135 P. (2d) 332 (1943).
56 State v. Cauthen, 152 P. (2d) 255 (1944).
57 85 L. Ed. 1305 (1941).
58 Boomer v. Olsen, 10 N.W. (2d) 507 (1943).
59 People v. Arlen Service Stations, 31 N.E. (2d) 184 (1940).
60 Slome v. Godley, 23 N.E. (2d) 133 (1939); Merit Oil Co. v. Director of Necessaries of Life, 65 N.E. (2d) 529 (Mar., 1946).
61 Regal Oil Co. v. State, 10 A. (2d) 495 (1939).
62 State v. Miller, 12 A. (2d) 192 (1940).
63 In areas where the health element is distinct, but is less immediately apparent than in the practice of medicine, and where the occupational group is neither so ancient nor reputedly so honorable, the “standards of conduct … which are traditional in the competition of the market place” are on the whole constitutionally prohibitable, although not without strong judicial dissent. Statutes or municipal ordinances forbidding advertising the price of eyeglasses or lenses were sustained unanimously by the Wisconsin court (Ritholz v. Johnson, 17 N.W. (2) 590 (Feb., 1945); upheld four to three by the Ohio court (City of Springfield v. Hurst, 56 N.E. (2d) 185 (Aug., 1944); and vetoed five to two by the Michigan supreme court (Ritholz v. City of Detroit, 13 N.W. (2d) 283 (Feb., 1944). In the opinion of the Michigan majority and Ohio dissent, the evil sought to be remedied was a business evil—“the prevention of false, fraudulent, and misleading advertising”—and, so long as glasses and lenses may be sold “as an ordinary item of merchandise by anyone who may desire” …, prohibiting price advertising is an unconstitutional interference with “private business.” These judges leaned heavily on an earlier Ohio case invalidating legislation against advertising the price of haircuts. Repudiating this analogy, as well as the view of the goals and operation of the ordinance, the Wisconsin court, the Ohio majority, and the Michigan minority maintained that price advertising here resulted in competitive price-cutting. Low price in turn induced the public to buy, and opticians to sell, “glasses of poor workmanship and material, equipped with poorly ground lenses”—defects which cannot readily be detected by the wearer and which often seriously impair eyesight. Thus, prohibiting “such bait advertising” “has a real and substantial relationship to the public health.” For the same reasons of health, the state might forbid outright the retail sale of glasses as merchandise to be selected by the customer, and, that being so, lesser measures designed only to discourage the practice are well within the police power. It was conceded by all hands, and unanimously upheld by the supreme court of Virginia (Ritholz v. Commonwealth, 35 S.E. (2d) 210 (Sept., 1945), that licensed optometrists could be placed under this limitation.
64 Broadbent v. Gibson, 140 P. (2d) 939 (1943).
65 City of Cincinnati v. Correli, 49 N.E. (2d) 412 (1943). In a case involving only the particular closing hours, not the power to close, which had earlier been upheld, the New Jersey supreme court sustained an ordinance closing barber shops on Wednesday afternoons and holidays. Amodio v. Board of Commr's of Town of West New York, 43 A. (2d) 889 (Sept., 1945)
66 199 N.E. (2d) 187 (1935).
67 City of Jackson v. Murray-Reed-Slone, 178 S.W. (2d) 847 (1944).
68 Heil v. Kaufman, 189 S.W. (2d) 276 (Sept., 1945).
69 East New York Savings Bank v. Hahn, 59 N.E. (2d) 625 (1944). One judge dissented.
70 Petition of Oleson, 3 N.W. (2d) 880 (1942).
71 Fort Worth & D. C. Ry. Co. v. Welch, 183 S.W. (2d) 730 (1944). See this Review, Vol. 36, p. 684 (Aug., 1942); Vol. 37, p. 659 (Aug., 1943).
72 State v. Morton, 148 P. (2d) 760 (1944).
73 Williams v. State, 176 S.W. (2d) 177 (1943).
74 Asbury Hospital v. Cass County, 7 N.W. (2d) 438 (1943); 2d case 16 N.W. (2d) 523 (1944); affirmed 66 S. Ct. 61 (Nov., 1945).
75 Benschoter v. Hakes, 8 N.W. (2d) 481 (1943).
76 Louisiana State Dept. of Agriculture v. Sibille, 22 So. (2d) 202 (Feb., 1945, reh. den. Apr. 30, 1945).
77 Patterick v. Carbon Water Conservancy District, 145 P. (2d) 503 (1944).
78 In re Opinion of the Justices, 22 So. (2d) 521 (June, 1945).
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