State and Local Government Law Commons^™

State And Local Taxation -- 1961 Tennessee Survey (Ii), Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey the pickings by way of decided cases have been pretty slim. Only two cases are here the subject of extended comment.' However, the comprehensive congressional study of state taxation of multistate business has been extended until July 1, 1963. The expanded congressional study now being conducted includes all forms of state taxation of interstate commerce, such as franchise taxes, sales and use taxes, gross receipts taxes, and ad valorem taxes. Under the chairmanship of Congressman Willis, a subcommittee of the House Judiciary Committee with the help of a sizeable staff and an advisory …

Local Government Law -- 1961 Tennessee Survey, Eugene Puett

Vanderbilt Law Review

Change of Boundaries.--Incorporated cities and towns continued to use the authority in the annexation statute to annex by ordinance,'and the courts were presented with several questions of interpretation of the statute not heretofore answered.

Discretion To Annex by Ordinance--The question in Central Soya Co. v. City of Chattanooga was whether or not a municipality when petitioned by "interested persons" must propose extension of its corporate limits by the referendum method.

Burden of Proof in Annexation--Since the action of the municipality is by ordinance, the suit to contest the validity of an annexation ordinance is in the nature of a quo …

Edmund M. Morgan, Sam L. Felts

Vanderbilt Law Review

Professor Morgan's subject in this Survey is Procedure and Evidence, the field of his greatest contribution to the law. Its importance cannot be overestimated; for no laws can be better than they actually work in practice. As he emphasizes, the whole purpose of the rules is specifically to define the area of dispute, and to provide the best methods for solving it. In short, the problem, the same for both the practitioner and the judge, is that of mastering the materials of the controversy. Morgan throws a flood of light upon every phase of this problem. Under his extraordinary powers …

Bills And Notes -- 1960 Tennessee Surveys, B. Gilreath

Vanderbilt Law Review

The fact that there was only one reported Tennessee decision during the survey period for 1958, none in 1959 and again only one for 1960, is a high tribute to the settled condition of the law of negotiable instruments, and the knowledge and wisdom of the lawyers of that state. When the law on any subject is settled and known men can make their contracts and engage in their transactions with security; uncertainty breeds doubt, confusion, strife, litigation and loss.

Book Reviews, Lee S. Greene, Earl F. Murphy (Reviewer)

Vanderbilt Law Review

Index Digest of State Constitutions:

This is a revision of the first edition of Index Digest of State Constitution prepared in 1915 for the use of the New York State Constitutional Convention of that year. Both the first and the present second edition were prepared by the Legislative Drafting Research Fund of Columbia University. The editor of the present volume was Richard A. Edwards, who worked with the aid of associate editors James L. Blawie and Marilyn B. Blawie. Over forty years have passed since the first Index Digest appeared.This has been a period of some rewriting of state constitutions,considerable …

Book Reviews, John C. Wahlke, Walter P. Armstrong, Jr.

Vanderbilt Law Review

The State Legislative Institution By Jefferson B. Fordham Philadelphia: University of Pennsylvania Press. 1959. Pp. 109.

reviewer: John C. Wahlke

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Handling Accident Cases By Albert Averbach Rochester: The Lawyers Co-operative Publishing Co. 1958. Pp. xii, 1505.

reviewer: Walter P. Armstrong, Jr.

Local Government Law--1959 Tennessee Survey, A. E. Ryman, Jr.

Vanderbilt Law Review

Local government law is primarily made up of special exceptions to and provisions concerning laws of general application, both substantive and procedural. Starting with that premise, this survey is classified into two basic subsections: exceptions resulting from relations between sovereign agents, and exceptions resulting from relations between a sovereign agent and private parties. Because of a trend believed to be of significance with regard to other areas of law, the section on financial policy is considered separately as another subdivision herein.

Satisfactory review of all of the substantive legal subjects touched upon by decisions and legislation which involved local agents …

Bills And Notes--1958 Tennessee Survey, S. B. Gilreath

Vanderbilt Law Review

Express Provision Concerning Negotiability. Phelan v. Phelan is the only case which has been found on the subject of bills and notes decided during the survey period. It was a suit in equity on a note in the sum of $4,000 made on April 10, 1954, by R. E. Phelan and payable to W. 0. Phelan on September 15, 1954. The note provided that it was "non-negotiable and non-transferable."

The payee, W. 0. Phelan, filed a bill to recover a decree on this note against R. E. Phelan, the maker, who, in turn, filed an answer pleading as a set-off …

Local Government Law -- 1958 Tennessee Survey, John B. Thurman, Jr., Roger G. White

Vanderbilt Law Review

The tremendous expansion of the functions of local governmental agencies, particularly into provinces heretofore reserved for private enterprise, has resulted in a similar expansion of local government law. It seems safe to assert that within the confines of local government law can be found legal principles and rules from practically every other field of law. It is necessary, therefore, to limit the scope of an annual survey of local government law; no longer is it possible to include in a survey article such as this a discussion of all of these legal principles and rules. Nor is such a discussion …

Procedure And Evidence -- 1958 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction and Sufficiency on Demurrer: A pleading must be construed in the light of matters judicially noticed; an allegation of facts from which the inference of the existence of an essential fact is no more reasonable or is less reasonable than an inference of its non-existence is not the equivalent of an allegation of that essential fact. ...

Thus in an action against a Pension Board for money due, a demurrer to the bill of complaint specifying only the failure to allege a ground of recovery does not raise the question whether the decision of the Pension Board is made …

State Power Over The Federal Contractor: A Problem In Federalism, Arthur S. Miller

Vanderbilt Law Review

In large measure both the federal officials, whose job it is to enter the commercial market to fulfill the government's material needs, and the federal contractor, wherever he may be and of whatever size he may be, tend to look upon attempts by states to tax or regulate with a skeptical eye. The state appears as some alien interloper whose activities result only in hardship and delay to the contractor and consequent annoyance and financial cost to the federal government. By and large, accordingly, a prevailing idea in the federal procurement circles seems to be that of avoiding, whenever possible, …

Fair Trade And The State Constitutions -- A New Trend, Edward J. Kohrs

Vanderbilt Law Review

The proponents of resale price maintenance will mark the years 1955 and 1956 as a period of major setbacks. The past two years have seen the highest courts of eight states' invalidate state Fair Trade laws. The rapid development of this trend is surprising in view of the fact that prior to 1949, the constitutionality of such legislation under the state constitutions had been upheld by every state court in which it was attacked, and was widely regarded as a settled proposition.

Much has been written explaining, defending, and condemning the concept of Fair Trade, and no attempt will be …

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 …

Forward: Symposium On State Sales Tax, Charles F. Conlon

Vanderbilt Law Review

One of the most remarkable developments in state finance is the rapidity with which the retail sales tax has become the most important fixture in the revenue system. Practically unknown a quarter century ago, by five years later in 1935 the tax yielded $284 million, slightly less than 13 per cent of state tax collections --unemployment compensation taxes aside. Last year, state sales tax revenues amounted to $2.6 billion, or about 23 per cent of state tax collections. For the future the prospect is that sooner or later all but a few, if indeed not all the states, will be …

Forward, Law Review Staff

Vanderbilt Law Review

This is the third year in which the faculty members of the Vanderbilt Law School have prepared the Annual Survey of Tennessee Law. The undertaking is, of course, primarily for the benefit of the members of the Bench and Bar of Tennessee. We hope that they have found it sufficiently useful to justify the effort and expense involved. The first Survey was confined almost entirely to the decisions of the State Supreme Court and the Court of Appeals. It has now been expanded to provide for systematic inclusion of federal decisions involving Tennessee law and occasionally even decisions of other …

Local Government Law -- 1955 Tennessee Survey, Clyde L. Ball

Vanderbilt Law Review

Police Power: Conformity of Ordinance to State Statute: The town of Fayetteville enacted an ordinance imposing higher standards than those established by state and federal laws upon producers, of milk to be sold within the city. In State ex rel. Beasley v. Mayor and Aldermen of Fayetteville' plaintiff milk producer, having complied with state and federal requirements, was denied a permit to sell inside the city and sought a writ of mandamus to require the city authorities to issue the permit. Under the holding in State ex rel. Nashville Pure Milk Co. v. Shelbyville, a municipality could not refuse to …

Some Perspectives On Written Law Processes In Local Government, C. Dallas Sands

Vanderbilt Law Review

There is a wide assortment of local governing bodies which exercise some measure, more or less, of legislative authority. Municipal governments generally have separate legislative bodies in the form of a council or a commission. Legislative powers may reside in county, township, parish, or borough organizations. And some law-making power, though usually more narrowly confined, may be exercised by special purpose units of local government such as school districts, drainage districts, irrigation districts, and the like. In both volume and effect, the importance of the legislative output of all of these agencies should not be underestimated. Their impact is felt …

The Place Of The Planning Commission And The Board Of Zoning Appeals In Community Life, E. C. Yokley

Vanderbilt Law Review

Progressive and fortunate is the city or town served by a planning commission whose membership is comprised of upstanding and public spirited citizens of known integrity, who give freely of their time and talents in such activity. When the same city or town can point with pride to a board of zoning appeals possessing the same high qualities of dedicated public service, it is doubly blessed.

The members of such commissions and boards become the city's most effective police officers when they properly perform their duties. This is literally true, because they derive all of their authority from such part …

Local Government In The Larger Scheme Of Things, Jefferson B. Fordham

Vanderbilt Law Review

The growing interest displayed by the law reviews in the legal problems of local government reflects a gratifying increase in research and scholarly activity in the field.' This interest on the part of law school scholarly media is especially noteworthy, since the world of legal education has a peculiar responsibility to identify and engage in thoughtful study of the great legal problems of contemporary society.

In this brief paper an effort is made to place the problem of making appropriate legal provision for local autonomy in more adequate perspective. That is a rather ambitious venture. One is moved by the …

Area-Development Authorities: A New Form Of Government By Proclamation, Ross D. Netherton

Vanderbilt Law Review

Let it be understood in the very beginning that the views of this writer regarding Public Authorities are partisan. He believes that recent years have witnessed the emergence of a new instrumentality of local government, the species of which are sometimes called "port authorities," sometimes "toll commissions," sometimes "regional boards," but all of which are capable of being described generically as "area-development authorities." He submits that these instrumentalities, while offering a unique and efficient means of performing many of the special functions which local governments in our times are called upon to undertake, have been allowed to grow away from …

An Inquiry Into The Principles Of Municipal Responsibility In General Assumpsit And Tort, George K. Gardner, Leslie M. Geller, John F. Mcgrory, William B. Shaffer Jr.

Vanderbilt Law Review

This paper is written in the conviction that the world is governed by natural law. It is our ambition to describe an analytical method by which the true responsibility of a municipality in respect to any given claim in general assumpsit or tort may be ascertained. It is not pretended that the method which we shall offer will yield a result in harmony with every reported judicial decision and statute, nor even that it may not differ rather widely from the system of legal rules prevailing currently in many states. It is our hope to present an exposition of basic …

The Validity Of Extraterritorial Municipal Zoning, Otis J. Bouwsma

Vanderbilt Law Review

A body of law does not suddenly spring up. A period of development is required during which there is a gradual evolution of a comprehensive and coherent body of law. So, the law of zoning did not go immediately from the one extreme of completely unregulated city development to the other extreme of closely restricted city planning and zoning. Throughout the years tremendous changes in living conditions were taking place; sign board regulation was developing; and cities were prohibiting noxious uses of property for the benefit of the whole community. These things paved the way for the holding in Village …

Consolidation Of County And City Functions And Other Devices For Simplifying Tennessee Local Government, Wallace Mendelson

Vanderbilt Law Review

The growth of urban population beyond the legal boundaries of our towns and cities presents problems that are not being handled effectively by existing agencies of local government. Essentially the difficulty is that, while the suburbanites are an integral part of the central city's social and economic life, they are beyond her legal jurisdiction. As a result county government, designed primarily for rural areas, finds itself bogged down with urban problems. To meet such incongruities suburbanites often seek satisfaction of their needs in a series of uncoordinated special service districts, or other public or semi-public agencies and often ultimately in …

Suggestions For The Improvement Of Municipal Annexation Law, Wallace Mendelson

Vanderbilt Law Review

World War II aggravated one of our most troublesome municipal problems--the growth of urban fringe areas around the outskirts of towns and cities. Many municipalities are finding their natural development either frustrated or completely strangled by choker necklaces of satellite settlements. Parent cities are surrounded by slum areas which they cannot control and wealthy suburban sections which they cannot tax. For it is common that the poorest and the most prosperous tend to live in the outskirts--the former to avoid the sanitation and anti-nuisance standards of urban life, the latter to escape their share of the cost of government in …

State Law Versus A Federal Common Law Of Torts, Irvin M. Gottlieb

Vanderbilt Law Review

The Statute, Its Scope and Basic Standard Section 421(k) of the Federal Tort Claims Act excludes from its coverage "any claim arising in a foreign country."' The Foreign Claims Act which was passed by the 77th Congress and amended by the 78th Congress has specific application to foreign countries, including places located therein which are under the temporary or permanent jurisdiction of the United States.

Court test of the territorial scope of the Federal Tort Claims Act arose in a series of cases decided in 1948, culminating in United States v. Spelar, where the issue of possible foreign coverage was …

Claims Against States, Leslie L. Anderson

Vanderbilt Law Review

In 1924, commencing a leading series of articles on "Government Liability in Tort," Professor Edward M. Borchard referred to what he called the "unexampled expansion of the police power in the United States." He wrote of the increasing risks which individuals in this country are left to bear from "defective, negligent, perverse or erroneous administration" of the functions of government. If those functions had increased at a considerable rate at the time of his article, what would one say of their extent today? Even the leaders of the New Deal discerned the risks to which increased governmental activity subjected people, …

Creditor's Rights, Paul J. Hartman

Vanderbilt Law Review

In City Finance Co. v. Perry, the Tennessee Supreme Court was called upon to construe a portion of the new and rather involved Motor Vehicle Title and Registration Law, which was enacted by the 1951 legislature. The Perry case construed the provisions which have to do with the recordation of liens upon the certificate of title as constructive notice thereof. These require owners of motor vehicles to register them in the name of the owner with the Motor Vehicle Division of the Tennessee Department of Safety and to procure from it a certificate of title and a title card. This …

Local Government Law, Clyde L. Ball

Vanderbilt Law Review

This summary is limited to cases decided in the Court of Appeals and Supreme Court of Tennessee, reported during the last year, and dealing with some phase of that body of law which embraces' Municipal Corporations, Counties, Officers, Elections and related topics fitting into the general classification of Local Government Law. No attempt has been made to consider Acts of the 1953 General Assembly which may have affected this field, as most of the legislation in this field is local in nature.

Annual Survey Of Tennessee Law, John W. Wade

Vanderbilt Law Review

The idea of an annual survey of the law of a particular jurisdiction is not a new one, either in this country or abroad. During a period of at least 25 years an increasing number of publications have undertaken to present such a survey. The task is a delicate one, and performances have been somewhat uneven. A mere digest of appellate opinions or a scissors-and-paste collection of expressed rules of law serves some useful purpose but scarcely justifies separate existence. On the other hand an exhaustive discussion of most of the individual decisions prevents a view of the forest for …

Federal Control Of Conflict Of Laws, Elliott E. Cheatham

Vanderbilt Law Review

Under our federal system of government two sets of laws operate within the country, the laws of the constituent states and the laws of the central government. For lawyers there is the ever present question, which of them applies to a case: the law of a state, to be interpreted finally by the courts of the state; or national law--federal law, as it is usually called--of which the Supreme Court of the United States is the final arbiter?

Interstate and international matters, with which conflict of laws deals, involve national as well as state interests. In the United States it …