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State Constitutional Law in 1940–19411
Published online by Cambridge University Press: 02 September 2013
Extract
The increase in judicial restraint noted a year ago has again been in evidence during the period under review. State courts, in following the lead of the United States Supreme Court, have construed police power liberally and have spoken out in defense of civil rights. Noteworthy, as well, has been the practice of these courts to construe strictly the power of the governor in this period of expanding administrative authority. The tendency of state courts to uphold experimental legislation, in line with the doctrine established by Nebbia v. New York rather than founded on liberty of contract and separation of powers precepts, has not been uniform. Federal decisions which recently have been greatly weakened but not expressly overruled still serve as guide-posts for some appellate courts.
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- Copyright © American Political Science Association 1941
References
2 This Review, Vol. 34, p. 700.
3 291 U.S. 502.
4 Petition of Florida State Bar Ass'n. for Promulgation of New Florida Rules of Civil Procedure, 199 So. 57 (Fla., Dec., 1940). See also People ex rel. Lasecki v. Traeger et al., 29 N.E. (2d) 519 (Ill., Oct., 1940).
5 Florida Dry Cleaning and Laundry Board v. Economy Cash & Carry Cleaners, Inc., et al., 197 So. 550 (Fla., Aug., 1940); also Sanford Mfg. Co. v. Western Mutual Life Ins. Co., 294 N.W. 406; (Iowa, Oct., 1940); Dixie Greyhound Lines Inc. v. Mississippi Public Service Commission et al., 200 So. 579 (Miss., Feb., 1941).
6 Reid v. Smith, Director of Public Works and Buildings, et al., 30 N.E. (2d) 908 (Ill., Dec., 1940).
7 State ex rel Wolff v. Geurkind et al., 109 P. (2d) 1094 (Mont., Feb., 1941).
8 State ex rel. Glorioso v. Board of Supervisors of Elections for Parish of Jefferson (La. App.), 198 So. 773 (La., Dec., 1940). A statute of Michigan that requires all candidates for public office who have changed their names after January 1, 1933, to submit both names for inclusion on the ballot was challenged as class legislation. The supreme court sustained the provision as one designed to prevent fraud. Jeffers v. Election Commission of Wayne County et al., 293 N.W. 546 (Mich., Aug., 1940).
9 Burke v. State Board of Canvassers et al., 107 P. (2d) 773 (Kan., Dec., 1940). See last year's article, p. 701.
10 Phillips et al. v. Hubbard, City Clerk et al., 29 N.E. (2d) 969 (N. Y., Oct., 1940). The supreme court of Michigan, when called upon to define the duties of the secretary of state with regard to the filing of initiative petitions, held that these duties were ministerial and not quasi-judicial. Consequently, the secretary could not make an independent investigation into the sufficiency of signatures, although he might “exercise his honest judgment as to the validity of the names upon the face of the petition so as to reject names which are ridiculous and obviously facetious.” People ex rel. Wright et al. v. Kelly, Secretary of State, 293 N.W. 865 (Mich., Sept., 1940). The Wisconsin constitution empowers the legislature to vest county boards with legislative powers of a local character. Thus the supreme court declared an act invalid that authorized the people of a county to petition the county board for the enactment of a civil service ordinance or, failing this, for the board to refer the ordinance to the people at the ensuing election. This was held invalid as constituting prohibited delegation of power to the electorate. Marshall v. Dane County Board of Supervisors, 294 N.W. 496 (Wis., Nov., 1940). A Nebraska statute of 1939 that imposed obligation upon the sponsors of initiative petition in addition to constitutional obligations was sustained in State ex rel. Winter et al. v. Swanson, Secretary of State, 294 N.W. 200 (Neb., Oct., 1940). On the validity of initiative petition, see Sturdy v. Hall, Secretary of State, 143 S.W. (2d) 547 (Ark., Oct., 1940), and In re Initiative Petition #176, State question #253, 102 P. (2d) 609 (Okla., May, 1940).
11 253 P. 805; 142 Wash. 450.
12 State ex rel. Todd et al. v. Yelle, State Auditor, 110 P. (2d) 162 (Wash., Feb., 1941).
13 De Cano et al. v. State et al., 110 P. (2d) 627 (Wash., Feb., 1941). Errors in the title of an act may not be validated by reference to extraneous material. State ex rel. Bates v. Baumhauer et al., 195 So. 869 (Ala., May, 1940). The restriction limiting an act to one subject does not limit the act to one provision concerning that subject. Noble v. Noble, 103 P. (2d) 293 (Ore., June, 1940). Constitutional requirements with reference to legislative titles do not apply to city ordinances. Chicago Cosmetic Co. et al. v. City of Chicago et al., 29 N.E. (2d) 495 (Ill., Oct. 1940).
14 Commonwealth v. Dodson, Clerk of House of Delegates, 11 S.E. (2d) 120 (Va., Oct., 1940).
15 State ex rel. Grable et al. v. Carter, State Auditor, 103 P. (2d) 518 (Okla., June, 1940). Where the legislature increases the duties of the secretary of state with out increasing his compensation, the governor may not add to the secretary's compensation by drawing on his executive employment fund where the constitution forbids changing of salary during the term of office. Jackson v. Hodges, Comptroller., 10 S.E. (2d) 566 (Va., Sept., 1940).
According to the Maryland supreme court, the power of appointment is not an inherent power of the governor; rather, it is normally a power of the electorate. Buckholtz v. Hill et al., 13 A. (2d) 348 (Md., May, 1940). See also People ex rel. v. Downen, 108 P. (2d) 224 (Colo., Dec., 1940); State ex rel. Williams v. Cage, Judge, 199 So. 209 (La., Dec., 1940).
16 State ex rel. Donnell v. Osburn, Speaker of House of Representatives, 147 S.W. (2d) 1065 (Mo., Feb., 1941)
17 Minn. Const. Art. 8, sec. 3.
18 Ill. Const. Art. 8, sec. 1.
19 People ex rel. Hartman, Co. Coll. v. Term B. Ass'n of St. Louis, 30 N.E. (2d) 743 (Ill., Dec., 1940); Bd. of Educ'n of Minn. v. Erickson, Co. Aud., 295 N.W. 302 (Minn., Dec., 1940). On legislative power to limit judicial functions, see Denver Local Union #13 of International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America et al. v. Perry Truck Lines, Inc. et al., 101 P. (2d) 436 (Colo., Mar., 1940).
20 Bodinson Mfg. Co. v. California Employment Commission et al., 109 P. (2d) 935 (Cal., Feb., 1941). See also In re Determination of Relative Rights to Use of Waters of Deschutes River, 108 P. (2d) 276 (Ore., Dec., 1940); Sergi v. Industrial Commission of Ohio, 27 N.E. (2d) 149 (Ohio, Mar., 1940); Phipps v. Boise Street Car Co., 107 P. (2d) 148 (Ida., Oct., 1940); in O'Brien et al., Prison Director, v. Olson, Governor, (Cal. App.) 109 P. (2d) 8 (Cal., Jan., 1941) the supreme court permitted a review of the action of the governor in removing the state board of prison directors by the writ of certiorari—a writ limited, in that state, to reviewing action of constitutional courts. On administrative hearing, see Dierssen v. Civil Service Commission of City and County of San Francisco (Cal. App.) 110 P. (2d) 513 (Cal., Feb., 1941), and In re Atchison, Topeka & Santa Fe Railway Company's Protest of Rates, 107 P. (2d) 123 (N.M., Oct., 1940). The Kentucky supreme court of appeals held that the state probation statute was not unconstitutional in face of the contention that it gave the judiciary an executive power of pardon. Lovelace v. Commonwealth, 147 S.W. (2d) 1029 (Ky., Feb., 1941).
21 Miller et al. v. Port of New York Authority et al., 15 A. (2d) 262 (N.J., Nov., 1939).
22 People v. Standard Accident Insurance Co. et al. (Cal. App.), 108 P. (2d) 923 (Cal., Jan., 1941). A provision of the New York constitution permitted the issuance of local bonds for the period of usefulness of some object or purpose. The court of appeals defined the word “purpose” broadly enough to cover two-year bonds issued by a city to fund judgments against it. Cherry v. City of Long Beach et al., 26 N.E. (2d) 945 (N.Y., April, 1940). A borough may not avoid constitutional liability for damage due to the construction of streets where the borough stood aside and permitted the county to perform the construction work. Hughes et ux. v. Borough of Elizabeth (Pa. Super.) 17 A (2d) 914 (Pa., Jan., 1941). Temporary inconvenience to property owners in the use of their property caused by municipal improvement in question involved the blocking of access to property for eight months. Thompson et al. v. City of Mobile et al., 199 So. 862 (Ala., Jan., 1941).
Under a statute of Ohio that imposed on municipal corporations the duty of keeping public streets open, in repair, and free from nuisances, a city could not be held liable for injury caused by the location of a private United States mail box if it could be shown that the box was located by authority of the United States. Black v. City of Berea, 32 N.E. (2d) 1 (Ohio, Feb., 1941).
23 197 So. 495 (Fla., Aug., 1940).
24 Herken v. Glynn, 101 P. (2d) 946 (Kan., May, 1940). Sales and business taxes apply to Indian reservations unless the federal government has reserved against them. Neah Bay Fish Co. v. Krummel et al., 101 P. (2d) 600 (Wash., April, 1940). The extension of a city's limits by a state legislative act to include a portion of an Indian reservation was held lawful. Anderson v. Brule County et al., 292 N.W. 429 (S.D., June, 1940). The determination by a state of its marine boundary is conclusive when accepted by Congress. Skiriotes v. State, 197 So. 736 (Fla., Sept., 1940). Affirmed by the United States Supreme Court, April 28, 1941, to be reported in 312 U. S. Reports.
25 Cunningham et al. v. Broadbeth et al., 147 S.W. 408 (Tenn., Feb., 1941).
26 (Cal. App.) 101 P. (2d) 1112 (Cal., April, 1940).
27 Genola Town et al. v. Santaquin City et al., 110 P. (2d) 372 (Utah, Feb., 1941). The property right of a local district in a mental hospital it had constructed was not sufficient to prevent the state from assuming ownership and control of it. Chester County Institution District et al. v. Commonwealth et al., 17 A. (2d) 212 (Pa., Jan., 1941).
28 Stockton v. McFarland et al., 106 P. (2d) 328 (Ariz., Oct., 1940).
29 Twice in the brief enacting clause appears “and/or.”
30 In re Opinion of the Justices, 15 A. (2d) 33 (Me., July, 1940); see George Wash. Law Rev., Vol. 9, pp. 367–70 (Jan., 1941). The city of Denver sought to condemn certain lands lying outside the city for donation to the United States government for use as an air corps school and bombing field, lands that had been selected by the Secretary of War. The owner of a portion of the property in question acted to prevent the taking and donation on the ground that “power to condemn private property … for the public use of the United States” was lacking because it was exclusively for a federal purpose. Nevertheless the court upheld the right of Denver, under the home rule amendment to the state constitution, to spend its money in any way that benefited the city. Fishel v. City and County of Denver, 108 P. (2d) 236 (Colo., Dec., 1940). See also Geboski v. Montana Armory Board et al., 103 P. (2d) 679 (Mont., June, 1940).
31 Kennedy et al. v. Cook, 146 S.W. (2d) 56 (Ky., Dec., 1940). A similar case arose in Virginia, except that the question of eligibility was based on a statute rather than on the constitution. The outcome was the same. City of Lynchburg v. Suttenfield, 13 S.E. (2d) 323 (La., Feb., 1941). The supreme judicial court of Massa chusetts held that there was nothing in the common law, the Massachusetts constitution, nor the United States Constitution to prevent a superior court judge from serving on a draft board. In re Opinion of the Justices, 29 N.E. (2d) 738 (Mass., Oct., 1940). Constitutional provisions limiting indebtedness and the loan of public credit will not be interpreted to hamper national defense. Miles et al. v. Lee et al., 143 S.W. (2d) 843 (Ky., Oct., 1940).
32 Hotel & Restaurant Employees' International Alliance, Local #122, et al. v. Wisconsin Employment Relations Board et al., 294 N.W. 632 (Wis., Nov., 1940). See also Shively v. Garage Employees Local Union #44 et al., 108 P. (2d) 354 (Wash., Dec., 1940). Cf. Book Tower Garage Inc. v. Local #415, International Union, United Automobile Workers of America et al., 295 N.W. 320 (Mich., Dec., 1940), and San Angelo v. Amalgamated Meat Cutters & Butchers Workmen of North America, Local 103 (Civil Appeals), 139 S. W. (2d) 843 (Tex., April, 1940).
33 Howard Sports Daily, Inc., v. Weller, Chairman, Public Service Commission, et al., 18 A. (2d) 210 (Md., Feb., 1941).
34 Herder v. Shabodi et al., 14 A. (2d) 475 (N.J., July, 1940). It was held by the Illinois supreme court that a license could not be required for the sale of books if the books were of a religious character. Village of South Holland v. Stein, 26 N.E. (2d) 868 (Ill., April, 1940). On the ground that the distribution of literature to motorists at busy intersections was a menace to motoring, federal decisions were distinguished in a Florida case sustaining an ordinance forbidding such distribution. Stephens et al. v. Stickel et al., 200 So. 396 (Fla., Mar., 1941).
35 State v. Cox, and four other cases, 16 A. (2d) 508 (N.H., June, 1940).
36 Tucker v. Randall et al., 15 A. (2d) 324 (N.J., July, 1940).
37 Commonwealth v. Palms (Superior Court), 15 A. (2d) 481 (Pa., Oct., 1940).
38 Cox v. Rice, 31 N.E. (2d) 786 (Ill., Feb., 1941). Lavender v. City of Tuscaloosa, 198 So. 459 (Ala., Oct., 1940) held that imprisonment for failure to pay the city scavenger money due him for performance of a service mandatorily required by a city ordinance did not violate the constitutional prohibition against imprisonment for debt. A liability, sanctioned by a jail sentence, imposed by law on the father of an illegitimate child does not violate the South Dakota constitutional prohibition of imprisonment for debt. Acker v. Adamson, Sheriff, et al., 293 N.W. 83 (S.D., June, 1940).
39 State v. Henry, 198 So. 910 (La., Nov., 1940).
40 287 U. S. 45 (1932).
41 Ex parte Meadows (Okla. Crim.), 106 P. (2d) 139 (Okla., Oct., 1940). Cf. Ex parte Connor, 108 P. (2d) 10 (Cal., Dec., 1940).
42 Carter v. State, 9 S.E. (2d) 747 (Ga., June, 1940).
43 Welch v. State (Ga. App.), 11 S.E. (2d) 42 (Ga., Sept., 1940). The reopening of a criminal case in absence of the accused merely for the technical appointment of counsel who had actually served during the trial violated no substantial right of the accused. People v. DeLisle, 29 N.E. (2d) 600 (Ill., Oct., 1940). The California court held that mere youth and inexperience of assigned counsel were not in themselves sufficient grounds for reversing a murder conviction for want of due process. People v. Ives et al., 110 P. (2d) 408 (Cal., Feb., 1941).
44 Knox County Council v. State ex rel. McCormick, 29 N.E. (2d) 405 (Ind., Oct., 1940).
45 Wilentz, Attorney General v. Galvin et al., 15 A. (2d) 903 (N.J., Oct., 1940).
46 Vernon v. State, 200 So. 560 (Ala., Feb., 1941).
47 Eslick v. State (Crim. App.), 105 P. (2d) 554 (Okla., Sept., 1940); Mazer v. State, 18 A. (2d) 217 (Md., Feb., 1941). The fact that a defendant takes the stand in his own defense does not operate to make admissible evidence which had been seized under a faulty search warrant where proper objection had been previously made. Riley v. State, 18 A. (2d) 583 (Md., Mar., 1941). Cf. Mazer v. State, 18 A. (2d) 217 (Md., Feb., 1941).
48 Commonwealth v. Dugan et al. (Pa. Super.) 18 A. (2d) 84 (Pa., Jan., 1941).
49 Allen v. Trueman, Judge of the 2nd Judicial District, 110 P. (2d) 355 (Utah, Feb., 1941).
50 In re Watson, 291 N.W. 652 (Mich., Apr., 1940).
51 “He was … required to walk and make sudden turns. Again, he was required to hold out his hand and make an effort to place a finger on his nose…. Again, he was required to furnish a specimen of urine, in order that it might be analyzed for the purpose of determining whether alcohol was present.”
52 Apodoca v. State (Tex. Crim.), 146 S.W. (2d) 381 (Tex., Jan., 1941). There is no violation of the privilege against self-incrimination in compelling one who has been illegally arrested to appear in a police line-up for identification purposes. Meriwether v. State (Ga. App.), 11 S.E. (2d) 816 (Ga., Nov., 1940).
53 State v. Randolph, 102 P. (2d) 913 (Ida., May, 1940).
54 King v. State, 199 So. 38 (Fla., Dec., 1940).
55 Schill v. Remington Putnam Book Co., 17 A. (2d) 175 (Md., Jan., 1941).
56 State v. Walgreen Drug Co., P. H. Tr. & Ind. Serv. ¶ 97, 170. Cf. Commonwealth v. Zasloff, 13 A. (2d) 67 (Pa., May, 1940). See 1940 survey, p. 715, note 65. Prohibitions on sales below cost regardless of intent were among the reinforcement measures enacted in response to pressure from trade associations after the United States Supreme Court had sustained the original fair trade laws in Old Dearborn Distributing Co. v. Seagram Distillers Corp., 299 U. S. 183 (1936).
57 McElhane v. Geror, 292 N.W. 414 (Minn., May, 1940); State v. Sears, 103 P. (2d) 337 (Wash., June, 1940); Carroll v. Schwartz et al. 14 A. (2d) 754 (Conn., July, 1940); Miles Laboratories Inc. v. Owl Drug Co., 295 N.W. 292 (S.D., Dec., 1940); Weco Products Co. v. Sam's Cut Rate, Inc., et al., 295 N.W. 611 (Mich., Jan., 1941); Moore v. Northern Kentucky Independent Food Dealers Ass'n et al., 149 S.W. (2d) 755 (Ky., Mar., 1941). Qualifications and counter-trends must be noted here, however, for margins of safety are often narrow. The Washington law was upheld by a five to four court, while in the Zasloff Case (note 56 above) the Pennsylvania judges, though earlier in their opinion implying that an intent clause would have saved the act, went on to declare that “a penal statute must lay down a reasonably ascertainable standard of guilt,” and served notice that all legislative definitions of costs would be closely scrutinized and invalidated if found to be in definite. Following this line, and notwithstanding an intent clause, the Maryland court proceeded to overturn the Unfair Sales Act of 1939. Daniel Loughran Co., Inc., et al. v. Lord Baltimore Candy & Tobacco Co., Inc., et al., 12 A. (2d) 201 (Md., April, 1940). The court in the Walgreen case (note 56 above), though sustaining the act as a whole, voided one clause relating to costs as “indefinite and uncertain.”
58 State v. Gamelin, 13 A. (2d) 204 (Vt., May, 1940).
59 Equitable Loan Society, Inc., et al. v. Bell, Secretary of Banking et al., 14 A. (2d) 316 (Pa., June, 1940). The court here classed pawnbrokerage with lotteries, liquor, disorderly houses, drug and oleomargerine traffic, and declared that it not only might be regulated, but also might be wholly suppressed. Three judges dissented on this point.
60 Kelly-Sullivan, Inc., et al. v. Moss, Commissioner of Licenses of City of New York, et al., 22 N.Y.S. (2d) 491 (N.Y., Sept., 1940).
61 273 U.S. 418 (1927).
62 274 U.S. 1 (1927).
63 State v. Standard Oil Co. of New Jersey, 10 S.E. (2d) 778 (S.C., Sept., 1940).
64 Sperry & Hutchinson Co. et al. v. McBride, Director of Division of Necessaries of Life of the Commonwealth, 30 N.E. (2d) 269 (Mass., Nov., 1940).
65 Arnold v. Board of Barber Examiners et al., 109 P. (2d) 779 (N.M., Jan., 1941).
66 Tennyson v. State, 106 P. (2d) 1114 (Okla., Oct., 1940).
67 Fellman, David, “A Case Study in Administrative Law: The Regulation of Barbers,” Wash. Univ. Law Quar., Vol. 26, pp. 213–42 (Feb., 1941).Google Scholar
68 Hollingsworth v. State Board of Barber Examiners, 28 N.E. (2d) 64 (Ind., June, 1940); State v. Neveau, 294 N.W. 796 (Wis., Nov., 1940). Exemption of counties of less than 30,000 population from the provisions of the act was also held a fatal defect in the latter case.
69 Ferretti v. Jackson, 188 A. 474 (1936).
70 State v. Stoddard 13 A. (2d) 586 (Conn., May, 1940).
71 Distributors and consumers were each allowed but one board member.
72 Johnson v. Michigan Milk Marketing Board, 295 N.W. 346 (Mich., Dec., 1940).
73 Humphrey v. City of Phoenix et al., 102 P. (2d) 82 (Ariz., May, 1940). See the similar holding in Texas Housing Authority of City of Dallas et al. v. Higginbotham et al., 143 S.W. (2d) 79 (Tex., June, 1940).
74 Mumpower v. Housing Authority of the City of Bristol et al., 11 S.E. (2d) 732 (Va., Nov., 1940). The New Jersey supreme court saw little merit in the argument that whereas its earlier decisions had held slum clearance to be a public use, the Newark housing project was really for families of low income. Ryan et al. v. Housing Authority of City of Newark et al., 15 A. (2d) 647 (N.J., Oct., 1940). Opponents of low-cost housing for Negroes received a double setback when a divided Florida court rejected arguments which in effect denied municipalities use of the public corporation and made housing exclusively a county function. Lott et al. v. City of Orlando et al., 196 So. 313 (Fla., June, 1940), and Higbee et al. v. Housing Authority of Jacksonville et al., 197 So. 479 (Fla., Aug., 1940).
75 Florida's constitution (XVI, 16), like that of a number of other states, provides that “the property of all corporations shall be subject to taxation unless … held and used exclusively for … municipal … or charitable purposes.”
76 State ex rel. Burbidge et al. v. St. John, Tax Assessor, 197 S. 131 (Fla., June, 1940).
77 (Same case), 197 S. 549 (Fla., Aug., 1940).
78 State ex rel. Harper v. McDavid, Tax Assessor et al., 200 So. 100 (Fla., Feb., 1941). Compare State v. City of Tallahassee, 195 So. 402 (Fia., Mar., 1940), wherein the erection of an office building for rental to state, county, and federal governments was held a municipal purpose, and Brown v. Winton et al., 197 So. 543 (Fla., July, 1940), wherein the erection of a cold storage plant for rental purposes was held a municipal purpose. Cf. Hogue v. Housing Authority of Little Rock et al., 144 S.W. (2d) 49 (Ark., Nov., 1940).
79 Ives v. South Buffalo R. Co., 94 N.E. 431 (N.Y., 1911).
80 Prager v. W. H. Chapman & Sons Co., 9 S.E. (2d) 880 (W. Va., July, 1940).
81 277 U.S. 350 (1928).
82 State ex rel. Western Reference & Bond Assn., Inc., v. Kinney, Secretary of Labor, 293 N.W. 393 (Neb., Aug., 1940); reversed in Olsen, Secretary of Labor of Nebraska, v. Nebraska, 85 L. ed. 820 (April, 1941).
83 General Motors Corporation v. Read, Atty. Gen., et al., 293 N.W. 751 (Mich., Sept., 1940).
84 Gibson Products Co. v. Murphy, 100 P. (2d) 453 (Okla., May, 1940). The Illinois Pauper Act imposed a three-year local residence requirement as a condition for poor relief. This act was sustained in spite of the fact that faulty pleadings pre vent a clear-cut statement of the law. People ex rel. Heydenreich et al. v. Lyons, 30 N.E. (2d) 46 (Ill., Dec., 1940). See note, Univ. of Chicago Law Rev., Vol. 8, p. 544 (April, 1941).
85 State v. Duluth, Missabe and Northern Railroad Co., 292 N.W. 401 (Minn., Dec., 1939. Reargument denied April, 1940). For judicial construction of the right of Maryland to tax the Baltimore & Ohio Railroad, see Levin et al. v. Baltimore & Ohio Railroad Co., 17 A (2d) 101 (Md., Jan., 1941).
86 National Tea Co. et al. v. State, 294 N.W. 230 (Minn., Sept., 1940). See note, Yale Law Jour., Vol. 49, p. 1463 (June, 1940).
87 Cory v. King, Auditor, et al., 296 N.W. 506 (Minn., Feb., 1941). For an interesting conflict that developed in South Carolina over gas fund diversion, see State ex rel. Edwards v. Osborne et al., 7 S.E. (2d) 526 (S.C., Feb., 1940), and State ex rel. Edwards v. Osborne, 11 S.E. (2d) 260 (S.C., Oct., 1940).
88 State ex rel. American Legion 1941 Convention Corporation of Milwaukee v. Smith, State Treasurer, 293 N.W. 161 (Wis., June, 1940). Confronted with much the same problem of defining the permissible limits of the taxing power used for pur poses of state advertising, the Michigan supreme court sustained a one-cent-per-bushel or two-cents-per-hundredweight tax on the privilege of marketing Michigangrown apples, the resulting revenue being used for purposes of sales stimulation. Miller et al. v. Michigan State Apple Commission et al., 296 N.W. 245 (Mich., Feb., 1941).
89 State v. Inland Empire Refineries, Inc. (Montana Headlight Oil Co. et al., Interveners), 101 P. (2d) 975 (Wash., April, 1940). Great Northern Railway Co. v. Cohn, Acting Director of Licenses, et al., 101 P. (2d) 985 (Wash., April, 1940). See also City of Seattle v. Rogers, 106 P. (2d) 598 (Wash., Oct., 1940), wherein the supreme court invalidated a Seattle ordinance requiring a prohibitory license fee for conducting a charity campaign for profit.
90 Sholley, John B., “Are the Gasoline, Cigarette, and Sales Taxes Unconstitutional?,” Washington Law Rev., Vol. 15, pp. 215–38 (Nov. 1940).Google Scholar
91 Nickles v. Echelburger, Mayor, 31 N.E. (2d) 474 (Ohio App., Mar., 1941); Fetter v. City of Richmond et al., 142 S.W. (2d) 6 (Mo., July, 1940).
92 Davis v. Pelfrey, 147 S.W. (2d) 723 (Ky., Jan., 1941). However, the Paducah tax imposed on both resident and non-resident automobile operators was sustained by the same court. Johnson v. City of Paducah et al., 147 S.W. (2d) 721 (Ky., Jan., 1941).
93 City of Louisville et al. v. Aetna Fire Ins. Co. et al., 143 S.W. (2d) 1074 (Ky., Oct., 1940).
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