Constitutional Law Commons^™

A Missing Link In The Evolution Of Due Process, Wallace Mendelson

Vanderbilt Law Review

On the eve of the American Revolution, Blackstone could comment that "so great.., is the regard of the [English] law for private property ... it will not authorize the least violation of it; no, not even for the general good of the whole community."' A similar concern for proprietary interests soon found expression on this side of the Atlantic in what Professor Corwin has called "The Basic Doctrine of American Constitutional Law"; namely, the "doctrine of vested interests." The general purport of this concept was that "the effect of legislation on existing property rights was a primary test of its …

Book Reviews, Robert J. Harris, John Raeburn Green (Reviewer), H. C. Nixon (Reviewer)

Vanderbilt Law Review

----------------------------------- Book Reviews ----------------------------------

The Forgotten Ninth Amendment

By Bennett B. Patterson

Indianapolis: The Bobbs-Merrill Company, 1955. Pp. ix, 217. $4.00.

reviewer: Robert J. Harris

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The Birth of the Bill of Rights, 1776-1791

By Robert Allen Rutland

Chapel Hill: University of North Carolina Press, 1955. Pp. vii,243. $5.00.

reviewer: John Raeburn Green

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James Wilson: Founding Father, 1742-1798

By Charles Page Smith

Chapel Hill: University of North Carolina Press, 1956. Pp. xii, 426.$7.50.

reviewer: H. C. Nixon

Constitutional Law -- 1956 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Several major constitutional problems were presented to the Tennessee Supreme Court during the survey year. There were no startling developments in the court's disposition of these cases, nor in the opinions proclaimed in each instance. The court avoided what it termed a "spectacular exhibition of judicial sophistry" in giving constitutional approval to certain activities of a religious nature in the public schools. In the regulation of economic affairs the court found no valid basis for a statute prohibiting the offering of benefits or premiums in connection with the sale of gasoline. Basic allocations of governmental power were involved in a …

Book Reviews, Robert J. Harris, Charles B. Nutting (Reviewer), Daniel Walker (Reviewer)

Vanderbilt Law Review

Book Reviews

American Constitutional Law By Bernard Schwartz Cambridge:Cambridge University Press, 1955. Pp. xiv, 364. $5.00

reviewer: Robert J. Harris

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The Development of Academic Freedom in the United States By Richard Hofstadter and Walter P. Metzger New York: Columbia University Press, 1955. Pp. xvi, 527. $5.50

Academic Freedom in Our Time By Robert M. MacIver New York:Columbia University Press, 1955. Pp. xiv, 329. $4.00

reviewer: Charles B. Nutting

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Military Justice in the United States

By Robinson 0. Everett

Harrisburg: Military Service Publishing Company, 1956. Pp. 338

reviewer: Daniel Walker

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Constitutional Law--Equal Protection--Automatic Reversion of Land to Grant or Upon Use by Non-Whites

Constitutional Law--Federal Eminent Domain--Potentiality for Water Power Development as Element of Compensation

Contracts--Place of Making--Acceptance by Instantaneous Means of Communication

Insurance--Automobile Liability Omnibus Clause-Coverage of Sub-Permitee

Insurance--Insurer's Right of Subrogation--Waiver by Refusal to Pay Claim

Master and Servant--Borrowed Servant Doctrine--Contract as Proof of Assumption of Control

Wills--Anti-Lapse Statutes--Beneficiaries of Class Gift Dead at Will's Execution

Toth V. Quarles -- For Better Or For Worse?, William R. Willis Jr.

Vanderbilt Law Review

In summary, it would appear that the Supreme Court, through the Toth decision, has created a situation that bears a potentiality of injustice and social detriment completely out of proportion to that feared from the provisions in the Uniform Code of Military Justice unhesitatingly declared unconstitutional. If the Court had adopted a practical and realistic approach to the problem, comparing the rights of the individual under both the constitution and military law, and visualizing the problem created by its present decision, the result could have been different. Now, Congress must attempt remedial action and determine the method of cure that …

Sales Taxation In Interstate Commerce, Paul J. Hartman

Vanderbilt Law Review

A treatment of the constitutional problems involved in "sales taxation" concerning multi-state sales transactions should cover more than "sales taxes" as that terminology ordinarily may be understood. The ordinary "sales tax" includes within its scope all business sales of tangible personal property at either the retailing, wholesaling, or manufacturing state. The statute, of course, often gives exemptions from the tax.

In many instances, however, the "sales tax" also is imposed on other kinds of transactions. Sometimes the sale of professional services and other services, of real property, and of intangible personal property is covered by the tax. Some states also …

Analysis Of Sales And Use Tax Exemptions -- With Comment As To More Uniform Applications, George D. Brabson

Vanderbilt Law Review

There are, generally speaking, three broad areas of exemption understatutes imposing sales and use taxes in the United States. These are:

(a) Exemptions arising out of the immunities of governmental agencies and instrumentalities, or out of the exercise of governmental functions (b) Exemptions arising under the commerce clause of the federal constitution (c) Specific exemptions created out of governmental taxing policies or social economic considerations

Each of these areas of exemption has grown up somewhat haphazardly over a substantial period of time, and very largely as the result of shifting judicial opinion, rather than as a matter of consistent legislative …

The Use Tax: Its Relationship To The Sales Tax, Eugene Greener Jr.

Vanderbilt Law Review

The use tax was conceived as a necessary supplement to the successful administration of the sales tax. With a use tax, in addition to a sales tax, legislators felt they had developed a taxing method that was symmetrical and complete.

Thus, if for some reason a sale at retail of tangible personal property escaped tax, "the use, the consumption, the distribution, and the storage [of the property would be taxed] after it has come to rest in this state and has become a part of the mass of property in this state."'

But as the poet Robert Burns intimated about …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Governmental Activities--Recognition in Forum of Sister State's Original Revenue Claim

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Constitutional Law--State Taxation of Interstate Commerce--Sales Tax on Shipboard Sales to Passengers

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Courts--Certiorari from United States Supreme Court--Loss of Importance Ground for Dismissal

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Domestic Relations--Adoption--Revocation of Consent by Natural Parents

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Evidence--Admissibility--Exclusion of Evidence Obtained by Unreasonable Search and Seizure

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Federal Procedure--Illegal Search--Injunction Against Agent's Testifying in State Court

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Income Taxation--Claim of Right Income--Time of Deduction when Restoration Required

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Malicious Prosecution--Privilege--Filing of Complaint with Bar Ethics and Grievance Committee

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Torts--Choice of Law Required by Federal Tort Claims Act

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Constitutional Law--Equal Protection--Exemption of Veterans from Payment of Hunting and Fishing Fees

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Constitutional Law--Separation of Powers--Procedure for Removal of Judge an Interference with Judicial Process

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Constitutional Law--State Police Power--Restriction of Competition among Employment Agencies

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Contempt of Court--Summary Punishment of Direct Contempt--Attorney's Absence from Court

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Corporations--Inspection of Books and Records--Right of Former Director

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Criminal Law--Lotteries--Necessity of Consideration

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Domestic Relations--Alimony--Fixed Payments to Wife until Her Death or Remarriage as Basis of Claim against Husband's Estate

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Domestic Relations--Divorce and Alimony--Award of Alimony …

Municipal Power To Tax -- Its Constitutional Limitations, Chester J. Antieau

Vanderbilt Law Review

Throughout the United States a great many municipalities have found that in recent years their revenue from taxes has not kept up with their expenses. While inflation spiralled municipal costs, while demands for municipal services increased terrifically during the last few" decades, and while financial burdens, such as the three-platoon fire department, were readily imposed upon the municipal corporations by the state legislatures, the tax bases available to municipalities were too often insufficient to meet the expanding local requirements. Older taxes, such as the tax upon real property, have proved more and more inadequate as residents moved beyond city limits, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Jurisdiction to Modify Custody Decree after Child's Domicile Changes--Full Faith and Credit in Third State

Constitutional Law--Freedom of Speech--"Prior Restraint" of Motion Pictures

Corporations--Uniform Stock Transfer Act--Effect of Notice of Restriction on Transfer

Criminal Procedure--Contempt--Extent of Power of Trial Judge to Punish Summarily

Evidence--Post-Accident Statements--Theories of Admissibility

Insurance--Automobile Theft Policy--Meaning of "Possession" in Exclusionary Clause of Policy

Malicious Prosecution--No Recovery for Base Less Civil Action--Necessity of "Special Injury"

Malpractice--Negligent Prescription of Habit--Forming Drugs--Patent's Simulation of Pain as Contributory Negligenic

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--ALIENS--CONSTITUTIONALITY OF McCARRAN ACT

CONSTITUTIONAL LAW--DUE PROCESS--DUTY OF NON-RESIDENT VENDOR TO COLLECT USE TAX

CONSTITUTIONAL LAW--DUE PROCESS--TAXABLE SITUS OF PROPERTY OF INTERSTATE AIR CARRIER

DOMESTIC RELATIONS--INFANTS--RIGHT TO DISAFFIRM SEPARATION AGREEMENT

DOMESTIC RELATIONS--RES ADJUDICATA--FAILURE TO CROSS CLAIM IN SEPARATE MAINTENANCE SUIT AS BAR TO SUBSEQUENT DIVORCE

FEDERAL JURISDICTION AND PROCEDURE--FEDERAL STATUTORY RIGHT--CHARACTERIZATION OF RIGHT FOR PURPOSE OF APPLYING STATE STATUTE OF LIMITATIONS

INCOME TAXATION--TAXABLE INCOME--INCLUSION OF PROCEEDS OF PUNITIVE DAMAGES

NATURAL GAS ACT--STATUTORY CONSTRUCTION--SCOPE OF STATUTE AS AFFECTED BY SUBSEQUENT DECISIONS

NEGLIGENCE--USED-CAR DEALER--DUTY TO INSPECT

SALES--IMPLIED WARRANTY--REQUIREMENT OF PRIVITY BETWEEN PROCESSOR AND ULTIMATE CONSUMER

TORTS--UNATTENDED AUTOMOBILE STATUTE--LIABILITY OF OWNER FOR …

Conflict Of Laws -- 1954 Tennessee Survey, John W. Wade

Vanderbilt Law Review

There are three Tennessee Supreme Court cases involving Conflict of Laws and an equal number of federal cases arising in Tennessee. One of the state cases raises constitutional questions and the United States Supreme Court may someday disagree with the Tennessee court.

"Stockholders' Liability." This case is Paper Products Co. v. Doggrell. The facts are not complicated, but a rather involved mix-up developed between the state and federal courts.

Doggrell, Konz and Whitaker were sole stockholders in an Arkansas business association entitled Forest City Wood Products, Inc., with principal office located in St. Francis County, Arkansas. Doggrell and Konz were …

Constitutional Law -- 1954 Tennessee Survey, Edwin F. Hunt

Vanderbilt Law Review

During the period under consideration the most important developments for Tennessee in the field of Constitutional Law were amendments to the State Constitution. This Constitution, adopted in 1870, was the oldest unamended constitution in the United States until eight proposed amendments were ratified by the voters on November 3, 1953. That the Tennessee Constitution had been unchanged for so many years was the result of several factors, most obvious of which was the fact that such constitution was especially difficult to amend.

under the amending provision' amendments required approval of a majority of the entire membership of both Houses of …

Crosskey's Constitution: An Archeological Blueprint, Howard J. Graham

Vanderbilt Law Review

Could it be fortunate that so much of history is a closed, or at least a forbidden, book? Otherwise might we not squander our resources reliving and refighting the past? The present soon would be unendurable, the future an endless remarshalling yard for causes stretching back to antiquity.

If the first volumes of Professor Crosskey's study invite this somber opening reflection, it is not that his achievement is unimpressive. Here, undeniably, is a work in the great tradition of controversial writing. Few lawyers and certainly fewer historians--ever willingly have assumed greater burdens of proof. Yet fewer still have contrived a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

A Commentary on Recent Case Law --By Subject:

Constitutional Law--Due Process--Use in State Prosecution of Evidence obtained by Illegal Invasion of Privacy

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Constitutional Law--Unlawful Search and Seizure--Admissibility of Evidence for Impeachment Purposes

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Evidence--Radar Evidence of Speed--Coincidence of Radar and Speedometer Readings as Hearsay

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Federal Courts--State NonResident Motorist Statute--Waiver of Federal Venue Privilege

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Federal Jurisdiction--Diversity of Citizenship--Retroactive Effect of Amendments to Perfect Jurisdiction

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Income Taxation--Deductions--Periodic Alimony Payments

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Labor Law--Preemptive Effect of Taft-Hartley--Scope of State Jurisdiction

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Torts--Dog Bite--Owner's Scienter

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Workmen's Compensation--Accident Arising out of Employment--Pre-Existing Heart Disease

Constitutional Law, Paul H. Sanders

Vanderbilt Law Review

The Supreme Court of Tennessee has been faced with few major Constitutional Law problems during the period under consideration. Statistically, the action of the Court in invalidating one law out of almost a score that were attacked before it on the basis of constitutional defect suggests an attitude of judicial restraint toward the product of a coordinate branch of government. The relatively small number of constitutional questions raised-- and many of them were obviously make-weight rather than points of principal reliance-- suggests a general awareness of the Court's stability and the unlikelihood of its departing from established precedent. Similarly, regard …

Statutory Interpretation, Henry N. Williams

Vanderbilt Law Review

The Supreme Court of Tennessee reconsidered several problems in the field of Statutory Interpretation during the Survey period, but its decisions largely followed principles already established in Tennessee and other jurisdictions.

Constitutional Requirements

Certain problems in the field of legislation arise in Tennessee by reason of state constitutional provisions. The Court is committed to the position of interpreting these provisions more or less irrespective of the construction of comparable provisions in other state constitutions.'

The Constitution of the State of Tennessee provides: "No bill shall become a law, which embraces more than one subject; that subject to be expressed in …

The Conflict Of Laws: The Experience Of The Australian Federation, Zelman Cowen

Vanderbilt Law Review

For American lawyers conflict of laws problems arise at two levels. One group of problems appears within the area governed by the Federal Constitution, while others arise within a wider international area. The decision of a New York forum in a case involving Michigan elements may very well differ from that reached by the same forum where the foreign elements involve England or France. The Constitution itself is often responsible for this difference. For example, questions of full faith and credit or of due process may be involved. It is not surprising, therefore, that the question has been posed whether …

What Is Happening In The Conflict Of Laws: Three Supreme Court Cases, Wendell Carnahan

Vanderbilt Law Review

An answer to the topical inquiry is "A great deal" but full explanation of the general answer to a very big question cannot be attempted in a single article. Instead, attention will be directed primarily to the opinions in three cases decided on the same day by the Supreme Court of the United States. These cases present problems in the segments of conflict of laws dealing with principles of forum non conveniens and full faith to a statute,' jurisdiction over a foreign corporation and a combination of choice of laws rules and judicial recognition of an alimony award. These cases …

Habeas Corpus And Court-Martial Prisoners, James Snedeker

Vanderbilt Law Review

The origin of habeas corpus is lost in the mists of history. The leading idea, deliverance by summary legal process from illegal confinement, was present in the laws of countries in existence prior to the beginning of the English law and in other countries which derived none of their principles of jurisprudence or rules of procedure from English law. It was known to Roman law and to old Spanish law. It was recognized by the Magna Charta in 1215, although such recognition was probably not a primary purpose of the barons in forcing King John to sign that document. The …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Constitutionality of Group Libel Statute

Federal Employers Liability Act--Liability for Employment of Man with Violent Tendencies

Federal Jurisdiction--Diversity Jurisdiction and the Multi-State Corporation

Federal Jurisdiction--Erie Railroad Doctrine Extended to State-Created Rights Arising under Special Federal Question Jurisdiction

Labor Law--Picketing--Injunction against Breach of Bargaining Agreement

Landlord and Tenant--Exculpatory Agreement--Effect on Right of Subrogation of Landlord's Insurer

Military Law--Failure to Instruct as Prejudicial Error

Military Law--Infiltration of Command Influence as General Prejudice

Trusts--Distribution of Stock Dividends between Life Tenant and Remainderman

Paths To Constitutional Home Rule For Municipalities, Wallace Mendelson

Vanderbilt Law Review

A basic American tradition is that problems which are national in scope (i.e., which "affect more states than one") shall be handled by the national government, while problems of merely state-wide concern are left for state government. Municipal home rule is the application of this basic principal in the relationship of the state to its towns and cities. To put the matter in the most simple and direct terms--nothing should be done at the national level that can be done efficiently by the states and nothing should be handled at the state level that can be dealt with effectively by …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Agency--Liability of Master for Servant's Acts--State Permit to Operate

Agency--Possession as Indicia of Ownership

Constitutional Law--Aliens--Detention Where Deportations is Impossible

Courts--Contempt--Delay in Summary Punishment

Criminal Law--Habitual Criminal Statutes--Meaning of Previous Conviction Requirement

Domestic Relations--Liability of Husband for Necessaries of Wife Rightfully Living Apart

Income Taxation--Excludibility from Gross Income of Payment over Ceiling Price

Income Taxation--Taxable Income--Claim of Right

Procedure--Grand Jury--Motion to Expunge Defamatory Remarks in Report

Procedure--Statute of Limitations--Retroactive Operation

Statutes--Holding of Unconstitutionality Overruled--Necessity for Re-Enactment

Wills--Contest--Interest of Legatee's Representative

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Adverse Possession--Statutes--May One Acquire an Indefeasible Life Estate under Tennessee Code Section 8582

Constitutional Law--Freedom of the Press--Effect of City Ordinance Prohibiting Solicitation of Magazine Subscriptions without Prior Consent of Person Solicited

Constitutional Law--Statutes--Requirement of Loyalty Oath as Valid Exercise of Police Power

Contracts--Procurement of Government Contracts on Contingent Fee Basis--Effect of Executive Order

Criminal Law--Mens Rea--Requirement in Action for Converting Government Property--Necessity for Criminal Intent

Damages--Injury to Child--Expenses of Parent in Attending Child

Divorce--Determination of Place Where Abandonment Occurs--Effect of Residence Requirement for Bringing Action

Domestic Relations--Legitimation Statute--Interpretation and Effect

Evidence--Unreasonable Searches and Seizures--Admissibility of Evidence Obtained …

The Role Of The Privy Council In Judicial Review Of The Canadian Constitution--A Post-Script, Edward Mcwhinney

Vanderbilt Law Review

In its Preamble, the Constitution of Canada speaks of the desire of the Provinces of Canada to be "federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom." Historically, then, the Constitution of Canada like the Constitution of the United States, stems from a compact between a number of different territorial units: the Provinces of Lower Canada (Quebec), Upper Canada (Ontario), and the two eastern maritime Provinces of Nova Scotia and New Brtnswick, joined together in 1867 to form the new …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--RACIAL RESTRICTIVE COVENANTS--ALLOWANCE OF DAMAGES FOR BREACH

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CORPORATIONS--PARENT AND SUBSIDIARY--SUBSIDIARY AS INSTRUMENTALITY OF PARENT WHEN USED TO CARRY ON UNFAIR TRADE PRACTICES

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EVIDENCE--ADMISSIBILITY OF CONFESSION--SCOPE OF REVIEW OF COURT-MARTIAL BY COURT OF MILITARY APPEALS

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EVIDENCE--CONFLICT OF LAWS--APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR

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EVIDENCE--DUE PROCESS--USE IN STATE PROSECUTION OF EVIDENCE FORCIBLY OBTAINED BY STOMACH PUMP

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EVIDENCE--ENTRIES IN THE REGULAR COURSE OF BUSINESS--TEST FOR EXTENT OF ADMISSIBILITY UNDER FEDERAL JUDICIAL CODE

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EVIDENCE--HEARSAY--ADOPTION OF LIBERAL ADMISSION RULES OF ADMINISTRATIVE TRIBUNALS IN ANTITRUST COURT ACTION

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EVIDENCE--IMPEACHMENT OF ONE'S OWN WITNESS--USE OF PRIOR INCONSISTENT STATEMENTS

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State Statutes And The Full Faith And Credit Clause -- Hughes V. Fetter, Jay A. Hanover

Vanderbilt Law Review

The full faith and credit clause of the Constitution' has commonly been regarded as concerned only with the enforcement of foreign judgments between the states of the Union. The numerous cases which have come before the Supreme Court have dealt almost exclusively with the "judicial Proceedings" phrase of the clause, while the words "public Acts" and "Records" have been, for the most part, left untapped as a source of decisional law. It has only been in recent years that the Supreme Court has broadened its approach by applying the full faith and credit clause to the legislative acts of the …