5 Monthly Bull. Int'l Jurid. Ass'n 1 (1936-1937)

handle is hein.journals/injasmb5 and id is 1 raw text is: 


  INTERNATIONAL JURIDICAL ASSOCIATION


                                MONTHLY BULLETIN

Vol. 5, No. 1    JULY, 1936  426  Price, $1 a year


               JUDICIAL SUPREMACY
  When   the Supreme  Court  of the United States on June 1,
1936, declared the New   York Minimum Wage Law uncon-
stitutional,' it made clear its real objection to social legislation.
Previously in striking down federal laws-the  A.A.A.2  and
the  Guffey  Coal  Act'  and  restricting the scope of  the
T.V.A.,4-the   majority claimed to be defending the federal
system of state and national government. None   of these de-
cisions relied upon the due process clause to protect estab-
lished economic interests. The court's defenders argued that
the majority was  historically correct in implying that, with-
uniL   endent   to the Constitution, social lcgislation must be
left to the states.' In support of this contention, they pointed
to Justice Roberts' opinion  upholding the  New  York  law
fixing the price of milk  to dairy farmers  and  consumers,
which  declared that the due process clause was no  obstacle
to the choice by a state of whatever economic policy may be
appropriate.6  But  the majority  decision in the minimum
wage  case reasserts the court's domination and veto power
over the choice of economic policy.  The  dissenting opinion
of  Chief Justice Hughes  shows  that the law could  clearly
have  been held constitutional on accepted doctrines of con-
stitutional law. The  other dissenting justices concurring in
the opinion by Justice Stone did more than disagree on doc-
trines of law; they protested the court's usurpation of the
exclusive right to govern.
                       THE  DECISION
   The New   York minimum   wage  law came  before the court
 after the New  York  Court  of Appeals  had held it uncon-
 stitutional.7 That court declared that there was no difference
 between a statute which fixed minimum  wages  solely on the
 basis of a minimum  standard of living and one which  fixed
 wages on the basis of the value of the services rendered where-
 .i rshe re~-  b)klow a minim.m  ct ndard of living Hence it
 declared the previous ruling of the Supreme  Court  in the
 Adkins  case in 1923  was  controlling and  left it to the
                    (Continued on page 14)
   1. Morehead  v. New York  ex rel. Tipaldo, 80 L. ed. (Adv.)
 921, June 1, 1936. For the background of the case and a full dis-
 cussion of the facts, see 1. J. A. Bull., Vol. 4, No. 11a, p. 7. An
 application for rehearing is now pending but will not be determined
 until the fall.
   2. United States v. Butler, 56 Sup. Ct. 312, discussed in Con-
 stitutional Bars to Social Legislation, I. J. A. Bull., Vol. 4, No. 8,
 p. 1. The N. R. A. was declared invalid in Schechter Poultry Corp.
 v. United States, 295 U. S. 495 (1935).
   3. Carter v. Carter Coal Co., 80 L. ed. (Adv.) 749, May 18,
 1936, discussed in The Guffey Decision, I. J. A. Bull., Vol. 4, No.
 12, p. 1.
   4. Ashwander  v. Tennessee Valley Authority, 80 L. ed. (Adv.)
 427, Feb. 17, 1936. Discussed in Constitutional Amendments for
 Social Legislation, I. J. A. Bull., Vol. 4, No. 9, p. 1. The utilities
 have already banded together in an attack upon the T. V. A. as
 a whole.
   5. For  a criticism of this theory, see Charles Grove Haines,
 Judicial Review of Acts of Congress and the Need for Constitutional
 Reform, 45 Yale L. J. 816 (1936).
   6. Nebbia v. New York, 291 U. S. 502 (1934).
   7. Peopc  ex rel. Tipaldo v. Morehead, 270 N. Y. 233; see,
 1. 1. A. Bull., note 1 supra.
   8. Adkins v. Children's Hospital, 261 U. S. 525 (1923).


          RECENT ITEMS OF INTEREST
                POLITICAL CRIMINAL   CASES
  Georgia  Supreme   Court  Upholds  Herndon's  Conviction.
On  June  13, the  Georgia Supreme   Court  reversed Judge
Dorsey's decision releasing Angelo  Herndon  on  a writ  of
habeas corpus from a sentence of 18 to 20 years on the chain
gang.1  The ground  of his decision was that Section 56 of the
Georgia  Penal Law,  under  which  Herndon  had  been  con-
victed for attempting to incite insurrection was in conflict
with the due process clause of the Fourteenth Amendment  to
the federal constitution and  with various  sections of the
Georgia Constitution in that it was too vague and indefinite
to provide a sufficiently ascertainable standard of guilt.2 The
State of Georgia appealed  from so much  of Judge  Dorsey's
decision as sustained the writ of habeas corpus and Herndon
filed a cross-appeal from Judge Dorsey's failure to hold the
statute unconstitutional upon the other grounds  before the
judge.
  The  Georgia  Supreme  Court  sustained the appeal taken
by the State of Georgia  and dismissed the appeal taken on
Herndon's behalf.  The appellate court cited no authorities in
support of its decision but merely stated:
    Neither as expressed, nor as it was construed by this Court,
  is the above statute void, as violative of the fourteenth amend-
  ment of the Federal Constitution for the alleged reasons (1)
  that it 'denies and unduly restricts freedom of speech and of
  assembly'; (2) 'it is too vague and indefinite to provide a
  sufficiently ascertainable standard of guilt'.
The  statute was likewise held not to violate the state consti-
tution. The  appellate court, evading the entire question of
the extent to which the right of freedom of speech and of as-
sembly is protected by the constitution, merely said:
    The  foregoing provisions of the constitution do not guar-
  antee freedom of speech or the right of assembly in the per-
  petration of a crime.3
  The  case wsill be appealed to the United States Supreme
Court.   Since both Judge Dorsey  and the Georgia  Supreme
Court  expressly passed  upon  the  constitutionality of the
statute as construed and applied in the case, the United States
Supreme  Court  cannot again evade the issue of constitution-
ality by dismissing the appeal on technical grounds for want
   1. Judge Dorsey's opinion is unreported. It is summarized in
Herndon  Released, I. J. A. Bull., Vol. 4, No. 7, p. 1.
  2.  In the opinions in Herndon v. State, 178 Ga. 832, as explained
in rehearing in Herndon v. State, 179 Ga. 597, 598, 600, the statute
was construed as follows:
     It is immaterial whether the authority of the State was in
  danger of being subverted or that an insurrection actually occurred
  or was impending . .  Force must have been contemplated, but
  the statute does not include either its occurrence or its imminence
  as an ingredient of the particular offense charged. Nor would it
  be  necessary to guilt that the alleged offender should have
  intended that an insurrection should follow instantly or at any
  given time, but as to this element it would be sufficient if he in-
  tended that it should happen at any time within which he might
  reasonably expect his influence to continue to be directly opera-
  tive in causing such action by those whom he sought to induce.
  3.  Lowry, Sheriff v. Herndon; et vice versa, Georgia Supreme
  Court, Nos. 11216 and 11226. All concur except Russell, C. J., not
  participating. The two appeals were disposed of in a single opinion.
  Judgment was reversed on the State's appeal and affirmed on the
  defendant's appeal.

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