¹ The New Jersey court of errors and appeals held that the constitutionally-adopted common law doctrine of the incompatibility of offices could not successfully be invoked to vacate the office of a town mayor who had accepted a commission in the army—not, at least, where the legislature had indicated a policy to permit mayors to be absent for good and sufficient cause. Kobylarz v. Mercer 31 A. (2d) 208 (N. J., Mar., 1943). Interpreting the usual prohibition against dual office-holding, the North Carolina supreme court advised the governor that a statute was valid which authorized him to grant leaves to state officials for army service. Stress was laid on the temporary, and hence not incompatible, character of the second office, and on the fact that this case fell within the reason which led the framers of the constitution expressly to exempt service in the militia from the operation of the limitation. In re Advisory Opinion to the Governor, In re Yelton, 28 S.E.(2d) 567 (N. C., Jan., 1944). The supreme court of California expanded its earlier liberal opinion—which had declared that military service vacated state office but temporarily—to cover judges of the superior courts. This was done notwithstanding a constitutional declaration that “the legislature shall have no power to grant leave of absence to any judicial officer; any such officer who shall absent himself from the state for more than sixty consecutive days shall be deemed to have forfeited his office….” This section was said to apply to personal, rather than military leaves, and the court could see no compelling reason why judges alone, “of all the officers and employees of the state, should be discouraged from entering military or naval service in time of war.” Moreover, a constitutional clause directing judicial vacancies to be filled at the next general election “by the election of a judge for a full term” of six years was held to contemplate permanent vacancies. Hence, a temporary judicial vacancy, caused by the absence of a judge on military service, is to be filled by the governor under the constitutional authority given him to fill all vacancies for which “no mode is provided by the constitution and law.” People v. Sischo, 144 P. (2d) 785 (Calif., Dec., 1943). The only exception to the continued liberal trend was a five-to-four decision which held that a regent of the University of Oklahoma automatically forfeited his office immediately upon entering active duty as a commissioned officer in the Army of the United States. Wimberly v. Deacon, 144 P. (2d) 447 (Okla., Dec., 1943). In none of these cases did the absent official lay claim to his state salary. Where such a claim was made, it was not well received. Frazier v. Elmore, 173 S.W. (2d) 563 (Tenn., July, 1943).

² State ex rel Walker v. Harrington, 30 A.(2d) 688 (Del. Feb., 1943).

³ Richardson v. Radies, 35 A.(2d) 425 (N. J., Nov., 1943).

⁴ Opinion of the Justices, 52 N.E.(2d) 974 (Mass., Jan., 1944).

⁵ State v. Natelson Bros., 32 A.(2d) 581 (N. J., June, 1943). The New Jersey courts also sustained, as a war measure, a city ordinance, passed in conjunction with similar legislation by adjoining cities, which required drug stores to close at 10:00 p.m. on weekdays, 11:00 p.m. on Saturdays, and 9:00 p.m. on Sundays. The fact that overworked pharmacists might make costly mistakes made the regulation a reasonable exercise of police power. Spiro Drug Service, Inc., v. Board of Commissioners of Union City, 30 A.(2d) 892 (N. J., Mar., 1943; aff'd. 33 A.(2d) 872, Sept., 1943). But a Newark ordinance compelling retail stores, with certain exceptions, to close Tuesdays and Thursdays at 6:00 p.m. was struck down by the courts. Crawford's Clothes, Inc., v. Board of Commissioners of City of Newark, 35 A. (2d) 38 (N. J., Jan., 1944).

⁶ Markham and Callow, Inc., v. International Woodworkers of America, 135 P. (2d) 727 (Ore., Mar., 1943).

⁷ Schenck v. United States (1919), 249 U.S. 47, 52.

⁸ Honda v. People, 141 P.(2d) 178 (Colo., July, 1943; reh. den., Sept., 1943).

⁹ State v. Ikeda, 143 P.(2d) 880 (Ariz., Dec., 1943).

¹⁰ People v. Gordon, 144 P. (2d) 662 (Calif., Jan., 1944).

¹¹ 50 U.S.C. Sec. 31, Gorin v. United States, 312 U.S. 19, 27.

¹² Opinion of the Justices, 13 So.(2d) 674 (Ala., June, 1943).

¹³ State ex rel. Herbert v. Ferguson, 52 N.E.(2d) 980 (Ohio, Feb., 1944).

¹⁴ Kurtz, v. City of Pittsburgh, 31 A.(2d) 257 (Pa., Mar., 1943).

¹⁵ Hoyt v. Broome County, 34 N.E.(2d) 481 (N. Y., May, 1941).

¹⁶ Commonwealth v. Town of Hudson, 52 N.E.(2d) 566 (Mass., Dec., 1943).

¹⁷ Sec. 235, Constitution of 1901.

¹⁸ Brock v. City of Anniston, 14 So.(2d) 519 (Ala., May, 1943, reh. den., June, 1943).

¹⁹ 23 U.S.C.A. sec. 101–117.

²⁰ Jones v. City of Moultrie, 27 S.E.(2d) 39 (Ga., Sept., 1943).

²¹ The pertinent portion of the constitution reads: “Section 6, Article X; The General Assembly shall not have power to authorize any county or township to levy a tax or issue bonds for any purpose except for education purposes, to build and repair public roads, buildings and bridges, to maintain and support prisoners, pay jurors, county officers, and for litigation, quarantine and court expenses and for ordinary county purposes, to support paupers, and pay past indebtedness.”

²² Doran v. Robertson, 27 S.E.(2d) 714 (S. C., Nov., 1943).

²³ Bowles v. Willingham, 64 S. Ct. 641 (1944); Yakus v. United States, 64 S. Ct. 660 (1944).

²⁴ Lockerty v. Phillips, 63 S. Ct. 1019 (1943).

²⁵ Kittrell v. Hatter, 10 So.(2d) 827 (Ala., Nov., 1942).

²⁶ Ritchie v. Johnson, 144 P.(2d) 925 (Kans., Jan., 1944).

²⁷ Campbell v. Heiss, 53 N.E.(2d) 634 (Ind., Mar., 1944).

²⁸ Regan v. Kroger Baking Co., 54 N.E.(2d) 210 (Ill., Mar., 1944); Miller v. Municipal Court of Los Angeles, 142 P.(2d) 297 (Calif., Sept., 1943).

²⁹ The suit here was for $50 and costs, the maximum jurisdictional limits of the small claims court under California law, and hence the consumer had chosen a court of “competent jurisdiction.” This was true despite the absence of a claim for attorneys' fees (attorneys being banned by California law from small claims courts), even though section 205(e) of the federal act in terms provides for a minimum recovery of $50 “plus reasonable attorneys' fees and costs as determined by the court.” In North Carolina, under whose constitution and laws the justices courts have jurisdiction of amounts not exceeding $200 and no power to award attorneys' fees, a consumer who asked $50 and attorneys' fees was held not to have selected a court of “competent jurisdiction.” The question “whether … a justice of the peace would have jurisdiction of an action for a penalty not in excess of $200 under the Emergency Price Control Act… if no attorneys' fee was demanded,” was expressly reserved for decision when it should arise. Hopkins v. Barnhardt, 27 S.E.(2d) 644 (N. C, Nov., 1943).

³⁰ Biggs v. Beeler, 173 S.W.(2d) 144 (Tenn., July, 1943); same case, 173 S.W.(2d) 946 (Sept., 1943).

³¹ Williams, H. N., “The Poll Tax and Constitutional Problems Involved in Its Repeal,” University of Chicago Law Rev., Vol. 11, pp. 177–183 (Feb., 1944).CrossRefGoogle Scholar

³² The apparent ease with which the opinions confined attention to constitutionality of the act repealing the poll tax as a tax (ch. 37), in disregard of chap. 38 (repealing the tax as a prerequisite for voting and establishing a system of state-wide registration of voters), was explained by the fact that sec. 26 of chap. 38 asserted that the entire chapter was enacted in anticipation of the repeal of one of the sections repealed by chap. 37. Thus, invalidation of chap. 37 effectively blocked the entire program adopted in 1943.

³³ Upon petition for rehearing, opponents tardily challenged the view that the constitutional provision was mandatory; but their arguments were deemed unconvincing.

³⁴ H. N. Williams, op. cit. supra, note 31.

³⁵ Combs, , “An Unamended State Constitution: The Tennessee Constitution of 1870,” in this Review, Vol. 32, pp. 514–524 (1938).Google Scholar

³⁶ Ledgerwood v. Pitts, 125 S.W. 1036 (1910).

^36a Luker v. Curtis, 136 P. (2d) 978 (Idaho, Apr., 1943).

³⁷ State ex rel. Hughes v. Cleveland, 141 P.(2d) 192 (N. M., Sept., 1943). Characterizing its form as “miserably abortive … impossible, meaningless, and absurd,” and as “drafted by the administrative branch as an eleventh-hour matter,” the Montana supreme court invalidated the referendum of a gasoline tax highway bond measure on the ground that an appropriation of election costs was included and the constitutional power of referendum does not extend to appropriations of money. Burgan and Walker v. State Highway Commission, 137 P.(2d) 663 (Mont., May, 1943).

³⁸ Munsell v. Hennegan, 31 A. (2d) 640 (Md., Apr., 1943).

³⁹ Buckingham v. State ex rel. Killoran, Atty-Gen., 35 A.(2d) 903 (Del., Jan., 1944).

⁴⁰ In re An Act Concerning Alcoholic Beverages, 31 A. (2d) 837 (N. J., Apr., 1943).

⁴¹ State ex rel. Downey v. Sims, 26 S.E.(2d) 161 (W. Va., May–June, 1943).

⁴² Goodland v. Zimmerman, 10 N. W. (2d) 180 (Wis., June, 1943).

⁴³ Integration of Bar Case, 11 N.W. (2d) 604 (Wis., Nov., 1943; one judge dissented).

⁴⁴ This dissenting justice argued that integration was a matter which the “legislature … may, perhaps,” accomplish under the police power, “but if it may it would seem that it may, for like reason, if there be any, organize the barbers and the plumbers and the machinists and the members of any other trade or class of workman into a trade or labor union. But … the legislature … may not, in my opinion, delegate the exercise of that power to this court….”

⁴⁵ Petition of Integration of Bar of Minnesota, 12 N.W.(2d) 515 (Minn., Dec. 1943).

⁴⁶ In re Opinion of the Justices, 49 N.E.(2d) 252 (Mass., May, 1943).

⁴⁷ Ex parte Thomas, 174 S.W.(2d) 958 (Tex., Oct.–Nov., 1943).

⁴⁸ Lash v. State, 14 So. (2d) 229 (Ala., Feb., 1943).

⁴⁹ 64 S. Ct. 192 (1943).

⁵⁰ Lash v. State, 14 So.(2d) 235 (Ala., Mar.–Apr., 1943).

⁵¹ Owens, , “Study of Recent Labor Legislation,” Ill. Law Rev. p. 316 (Jan.–Feb., 1944).Google Scholar

⁵² See Markham and Callow v. International Woodworkers of America, supra note 6, stated in the section on War Cases. Cf. Pittman v. Mix, 11 So. (2d) 791 (Fla., Feb., 1943), wherein the supreme court of Florida decided without difficulty that an ordinance of the town of Perry which prohibited organization of labor unions and solicitation of members and membership fees violated provisions of the Declaration of Rights relating to due process, freedom of speech and press, enjoyment of life and liberty, and acquisition, possession, and protection of property.

⁵³ State v. Pate, 138 P. (2d) 1006 (N. M., Mar., 1943).

⁵⁴ People v. Roxborough, 12 N.W.(2d) 466 (Mich., Dec., 1943).

⁵⁵ Norris v. Alabama, 294 U.S. 587. (1935); Smith v. Texas, 233 U.S. 630 (1914).

⁵⁶ In re Herrera, 143 P. (2d) 345 (Calif., Nov., 1943). New Mexico's twenty-six-year-old juvenile court act also survived its first constitutional challenge. Doubts arose from two overlapping constitutional sections, one granting district courts general original jurisdiction and “such jurisdiction of special cases and proceedings as may be conferred by law, …” and the other vesting the judicial power of the state in “a supreme court, district courts, … and such courts inferior to the district courts as may be established by law … in any county or municipality … including juvenile courts.” The supreme court concluded that the power to establish juvenile courts carried with it the power to grant necessary jurisdiction, and such jurisdiction included the “special cases and proceedings” which had been expressly placed at the disposal of the legislature. The fact that only county and municipal courts could be created inferior to district courts presented greater difficulties, for the reason that their judges were under special constitutional limitations as to residence and tenure. These limitations could not be met by the district court judges presiding over the juvenile courts. The court held that the state alone, not the delinquent in this case, could initiate proceedings “fraught with such fatal and weighty consequences as … would attend a declaration that a court which has functioned for nearly a quarter of a century never had any existence at all. Moreover, in circumstances of this sort, there may be a de facto officer in the absence of a de jure office. Finally, since this was not a criminal proceeding, constitutional guarantees as to appeal, double-jeopardy, self-incrimination, And the like did not apply. In re Santillanes, 138 P.(2d) 503 (N. M., Apr.–May, 1943).

⁵⁷ The California version of the Model Act, adopted in 1942, allowed the agency, until 1946, to select and limit the number of persons committed to it. Such selection and limitation were to be guided by the adequacy of available facilities and the likelihood of benefit to the person excepted. These were held to be “appropriate legislative standards.”

⁵⁸ Dowd v. Stuckey, 51 N.E.(2d) 947 (Ind., Dec., 1943).