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tions for the guidance of the members of the constitutional convention
of Illinois which was shortly to assemble. Two of the proposals related
to the initiative and referendum and one to the problem of public
ownership of public utilities. The submission of these propositions
was attacked on the ground that the questions were not questions of
public policy within the meaning of the Public Opinion Act, which
contemplated the reference to the people only of questions relating to
legislative policy and not matters respecting constitutional changes.
It was also contended that it was a constitutional right of the citizens
to have the delegates to the constitutional convention unfettered by
any instructions from the people and entirely free to exercise their own
best judgment upon the questions they were called upon to consider.

The court did not discuss these contentions upon their merits but
held that the case did not present an opportunity for relief in equity-
A court of equity can intervene to protect civil rights but not political
rights. The right, if any, which is endangered by the referendum
complained of is political in character. Elections are not matters with
which a coiul; of equity can interfere without manifest danger to the
liberties of the people, and the actual financial loss arising from the
cost of such election which any one taxpayer would suffer is insufficient
to warrant the issuance of an injunction for its protection.

Display of Flag of Organization Advocating Principles Antagonistic
to Existing Govemmerd, Laws, or Constitution. Ex parte Hartman
(California, March 13, 1920, 188 Pac. 548). An ordinance of the city

461



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462 THE AMERICAN POLITICAL SCIENCE REVIEW

of Los Angeles made it a penal oflfense for any person to display pub-
licly or privately, or to have in possession, any flag or insignia of any
kind of any nation, sovereignty, society or organization espousing for
the government of the people of the United States principles or theories
of government antagonistic to the Constitution and laws of the United
States, or to the form of government thereof now existing. This
ordinance the court held to be unconstitutional as violating the "rights
guaranteed .... by the Constitution of this country," although
those rights are not specifically enumerated. It is pointed out that
the ordinance is couched in language broad enough to forbid the Sis-
play of the flag or emblem of organizations peaceably urging the adop-
tion of amendments to the federal or state constitutions even though
such proposals are innocent and harmless. In a sense any political
change may be regarded as antagonistic to the existing order of govern-
ment and to punish the peaceful and orderly espousal of such change
goes beyond the constitutional authority of the city.

Eminent Domain — Meaning of "Public Use*^ — Exclusion of Apart-
ment Houses from Residence Districts. State v. Houghton (Minnesota,
October 24, 1919, 174 N. W. 885; same, Minnesota, January 23, 1920,
176 N. W. 159). These cases present an interesting judicial debate
upon the question whether by use of the power of eminent domain
and the payment of compensation apartment houses may lawfully be
excluded from residence districts in cities. By an act of 1915 the
legislature of Minnesota authorized cities of the first class to establish
residence districts upon the petition of fifty per cent of the property
owners in the district sought to be afifected, and to exclude from such
residence districts a long and varied Ust of industrial and mercantile
establishments together with "apartment houses, tenement houses,
flat buildings." The cities were authorized to effect the exclusion of
these undesirable buildings or establishments by means of eminent
domain and the payment of compensation. The compensation was to
be paid out of assessments upon the property of the residents of the
districts thus benefited. In this case a mandamus was asked to com-
pel the building inspector of Minneapolis to issue a permit for an
apartment in one of these restricted districts.

On the original hearing the court held that this statute and the
ordinance of the city council of Minneapolis passed in pursuance of it
provided for an unconstitutional use of the power of eminent domain.
The majority opinion, written by Judge Dibell, narrowed the issue of



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JUDICIAL DECISIONS 463

the case to the question whether the condemnation of property rights
provided for was for a "public use" or not, inasmuch as it is well estab-
lished that private property may be taken only for a public use. It
was pointed out that the property condemned under these enactments,
property in the nature of an easement or restricted use, was not prop-
erty of which the public could make any actual use. The public gained
by such condemnation no right to enter upon or use the property
affected. The "use'' acquired was merely negative in character.
The court further declared that the "public use" for which the prop-
erty was being taken was public only in the sense that it worked to
the advantage and benefit of the surrounding property owners who
desired protection from the erection of ugly or inappropriate structures.
If the desire or need for protection of this kind is to be regarded as
constituting a "public use" for which private property may be taken
by right of eminent domain the limits of the doctrine are hard to fix
and much injustice may result. "When the humble home is threat-
ened by legislation upon aesthetic grounds, or at the instance of a
particular class of citizens who would rid themselves of its presence as
not suited in architecture or in other respects to their own more elab-
orate structures, a step will have been taken inevitably to cause dis-
content with the government as one controlled by class distinction,
rather than in the interests and for the equal protection of all." There
is, of course, no question of the police power raised in this case. In
fact the supreme court of Minnesota had in an earlier decision held
that apartment houses could not be excluded from residence districts
by a mere exercise of the police power since there was nothing in their
character to justify the conclusion that they could properly be classed
as nuisances (State v. Houghton, 134 Minn. 226, 158 N. W. 1017).
Two justices dissented from the decision of the majority in this case
and filed a brief opinion in which they laid emphasis upon the imdesir-
able results of aUowing apartment houses to invade residence districts
without restraint and expressed the view that "it is about time that
courts recognize the aesthetic as a factor in the affairs of life," and that
aesthetic protection is a proper field of legislative control. On a
rehearing of the case the dissenting justices won a majority of the
court to their point of view, the decision just discussed was reversed,
and the statute and ordinance in question were held constitutional.
The opinion of Judge Holt admitted that the public received no actual,
physical use of the property taken by eminent domain, and that only
a portion of the public could reasonably be said to be benefited by the tak-
ing. His opinion is in effect a vigorous protest against a narrow and in-



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464 THE AMERICAN -POLITICAL SCIENCE REVIEW

elastic definition of the term "public use" in the law of eminent domain.
The meaning of "public use" must expand with time and the needs of
society and purposes which are intimately connected with the welfare
of the community or a substantial portion of it may legitimately be
furthered by the condemnation of private property rights. Apartment
houses are a menace to the welfare of people living in residence dis-
tricts. They destroy the beauty of the neighborhood and bring about
depreciation in the value of surrounding property. This results in
loss to the owners of the property afifected and loss to the city in the
form of diminished taxable values. "Giving the people a means to
secure for that portion of a city wherein they estabUsh their homes, fit
and harmonious surroundings, promotes contentment, induces further
efforts to enhance the appearance and value of the home, fosters civic
pride, and thus tends to produce a better type of citizens." It is the
conclusion of the court that property condemned for such purposes is
condemned for a public use.

It will be observed that the clash of opinion in these two cases pre-
sents an issue by no means new. There have long been two distinct
interpretations applied to the term "public use" in the law of eminent
domain. One of these would make "public use" s3nDon3nnous with
"use by the public" and thereby limit the taking of private property
to the cases in which the public actually acquires title and possession.
The opinion of the majority in the first case examined approximates
this point of view. This doctrine has the very obvious advantage of
providing an explicit and unvarying test by which courts may deter-
mine whether or not the use for which property is being condemned
is pubUc or private. It is doubtless this definiteness which has com-
mended it to the approval of an overwhelming majority of courts and
commentators (Lewis, Eminent Domain, Sees. 257-258). The oppos-
ing view is that "pubUc use" in eminent domain should be construed
to mean "public welfare" and that any taking of private property
which can be justified upon this broad ground may be sustained. It is
this doctrine upon which Judge Holt bases his opinion in the second
case. While it commands the adherence of only a small minority of
the courts which have passed upon it, strong pressure is being exerted
in its behalf. The adoption of this more liberal doctrine of public
use seems necessary if the condemnation of various t3rpes of ease-
ments, or excess condemnation, are to be employed in the working out
of city planning programs and it seems probable that its acceptance
will tend to spread in spite of the dangers which are undoubtedly
connected with it.



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JUDICIAL DECISIONS 465

Freedom of Speech — Power of States to Prohibit Disloyal Language
During War, Ex parte Meckel (Texas, Court of Criminal Appeals,
May 21, 1919, on motion for rehearing March 19, 1920, 220 S. W. 81).
The legislature of Texas passed a Disloyalty Act making it a felony for
any person to utter in the presence of any other person language dis-
loyal to the United States in time of war, or language which, if uttered
in the presence of an American citizen, would be reasonably calculated
to provoke a breach of the peace. Meckel was convicted under the
act and on petition for a writ of habeas corpus urged that the act was
unconstitutional because it violated the guarantee of freedom of speech
found in the constitution of Texas, and because it was an attempt on
the part of the state to exercise war power which belonged exclusively
to Congress. The court of criminal appeals construed the act as one
designed to prevent breaches of the peace which might occur if disloyal
language were uttered in the presence of American citizens. Viewed
in this light the court found no difficulty in upholding the statute as a
legitimate exercise of the police power of the state. It suggested,
however, that if the act were interpreted as creating an offense other
than that of provoking breaches of the peace there would be grave
doubts as to its constitutionality.

On motion for rehearing the court adopted a different view of the
meaning and intent of the statute. This new construction was urged
by the state. Under it the act would provide, as paraphrased by the
court, " If any person in time of war, in the presence and hearing of
another person .... use any language .... which lan-
guage .... is of such a nature as that in case it is said in the
presence and hearing of a citizen of the United States, it is reasonably
calculated to provoke a breach of the peace, such person shall be guilty
of a felony." So construed the court held the statute unconsti-
tutional upon two grounds. In the first place, it abridged freedom
of speech as guaranteed by the bill of rights of the state constitution
because it penalized the utterance of disloyal language even when
such language was spoken under circumstances which would not tend
to produce a breach of the peace, namely in the presence of persons
who were not American citizens. The power of the state to curb
freedom of expression is limited to such measures as will prevent
breaches of the peace and does not extend to the penalizing of language
which is disloyal per se. In the second place, the punishment of per-
sons who speak disloyally during time of war but do not incite breaches
of the peace is the function of the federal government exclusively.



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466 THE AMERICAN POLITICAL SCIENCE REVIEW

"The prohibition of the use of disloyal language per se as a war meas-
ure, is admittedly the subject of federal legislation, and not within
the purview of the regulatory power of the states."

This decision seems to be unique. It is the first case apparently in
which a statute punishing disloyal utterances during time of war has
been held to invade the freedom of speech guaranteed by constitutional
provision. In holding that the state may not legislate is such a manner
as to aid the federal government in the exercise of the war power the
opinion in this case is in conflict with the decisions of the courts of
Minnesota* and New Jersey .^ In each of these cjiscs it was held that
the state could aid in the prosecution of the war, provided only that
the state laws enacted for that purpose did not conflict with congres-
sional legislation upon the same subject. This seems to be the correct
rule, not only with reference to the war power of Congress but also
with respect to other spherc^s of federal authority, and it is doubtful
if the doctrine of the Texas court of criminal appeals in this case \i'ill
meet with approval upon this point.

Involuntary. Servitude — Liability to Master of One Hiring Servant
Who Breaks Contract of Employment, Shaw v. Fisher (South Carolina,
February 23, 1920, 102 S. K. 325). This was an action for damages
brought against the defendant for enticing away from the plaintiflf a
servant who had contracted with him to work as a share cropper for a
period of one year. The defendant employed this sei-vant after having
notice that he was uniler contract to the plaintiff. The court, decided
that the defendant's conduct in the matter was not actionable. While
the common law recognized a right of action in such a case the Thir-
teenth Amendment to the federal constitution aboHshed any such
common law doctrine. The validity of a statute or rule of law must
be determined by its operation and effect. To allow the plaintiff to
recover damages from any one who employed a servant who broke a
contract of employment with the plaintiff would in effect compel the
servant to remain against his wishes in the employ of the plaintiff since
it would make it impossible for him to secure work elsewhere. The
servant has the right at any time to break his contract of service and
be subject only to liability for damages. Any pressure direct or in-
direct which deprives him of this right must fall within the prohibition
against involuntary servitude.

'State V. Holm, 16C N.W. ISl' see American Political Science Review, May.
1918, p. 286.

•State V. Tachin, 106 Atl. 145, idem, August, 1919, p. 498.



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JUDICIAL DECISIONS 467

Police Power — Power of State to Regulate Ordinary Mercantile Prices.
A. M. Holter Hardware Co. v. Boyle (United States District Court,
Montana, January 13, 1920, 263 Fed. 134). The legislature of Mon-
tana enacted a statute creating a trade commission and giving it power
to regulate business and to "establish maximum prices or a reasonable
margin of profit" in respect to all commodities. Action was instituted
in this case to restrain the enforcement of this law. The United
States district court held the act void as a deprivation of property
without due process of law. It has long been established that the
power of government to regulate prices extends only to businesses
which are affected with a public interest and not to the sale or pro-
duction of the ordinary commodities of commerce. While the list of
businesses which are thus affected with a public interest has expanded
with the passage of time, the courts of this country from the Supreme
Court down have adhered to the doctrine that the element of public
interest must always be present to justify the control of prices. The
business must be one "wherein its proper conduct concerns more than
the parties to any single transaction, wherein by reason of peculiar
circumstances the business sustains such relation to the public that
they are aflfected by its consequences." This element of public inter-
est is entirely lacking in the forms of business which the statute seeks
to subject to control. The act therefore interferes unreasonably with
private property rights, with individual freedom of contract, and
accordingly amounts to a deprivation of property without due process
of law.

Primary Election — Right of a Democrat to Become a Candidate for
Republican State Committeeman. German v. Sauter (Maryland, Feb-
ruary 18, 1920, 109 Atl. 5/1). This case is instructive as showing the
pitfalls which lie in wait for the careless legislator. The general laws
of Maryland relating to primary elections provide that it shall be the
duty of the supervisors of elections to print on the official ballots the
names of all candidates for public offices or for offices or committee
membership in political parties, provided that each candidate pays
such fees as may be required and files a certificate setting forth his
residence, the name of the office for which he is a candidate and the
party to which he belongs. The law does not require that a candidate
for nomination at the hands of a particular political party need be a
member of that party. The court held in this case that they had no
authority to add to the requirements or qualifications for nomination



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468 THE AMERICAN POLITICAL SCIENCE REVIEW

set forth in the law and that therefore Sauter, who was an affiliated
Democrat and who was consequently under the law unable to cast a
vote in a Republican primary, could compel the supervisors of elec-
tions to place his name on the ballot as a candidate for Republican
state committeeman.

Referendum — Applicability of Emergency Clause Provision to Acts
Passed by Special Session of Legislature. State v. Olson (North Dakota,
January 16, 1920, 176 N. W. 528). A special session of the legislature
of North Dakota convened in November 1919 and passed a substantial
number of acts designed to reduce the authority of several of the execu-
tive officers of the state who had been involved in a political disagree-
ment with the governor. At the close of the session the legislature
passed an act providing that all acts passed at any special legislative
session should go into effect within ten days of the date of enactment
unless the legislature by a vote of two thirds shall declare them to be
emergency measures in which case they shall be eiffective inunediately.
The constitution of North Dakota provides that the acts of the legisla-
ture shall not go into effect until the first day of July following the
close of the session unless the act shall by a two-thirds vote of the
assembly be declared an emergency measure. During the period in
which they are thus suspended the acts of the legislature are subject
to referendum by the people upon the filing of a petition in accordance
with the provisions set forth in the constitution. Thirty-nine of the
acts passed by the special session of 1919 were passed by less than the
majority of two-thirds requisite to make them emergency acts and
petitions calling for their referendum to the people were promptly
filed. The question whether these acts were constitutionally subject
to referendum is the point involved in this case.

It was urged upon the court that the constitutional provisions
respecting emergency legislation were not applicable to special sessions
of the legislature but only to the regular sessions, and that therefore
the special session had the power to put its enactments into operation
without delay irrespective of the constitutional clauses above men-
tioned. This view was supported by the argument that to suspend
the operation of statutes passed by a special session until the first of
the following July would mean in some cases a suspension of practically
a ydar and produce a situation which could not have been within the
contemplation of the framers of the constitutional provisions in ques-
tion. The court found itself unable to agree with this point of view,



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JUDICIAL PBCISI0N8 469

It declared that the constitution recognized no difference in powers or
duties between a regular and a special legislative session and that
there was no basis upon which to rest the view that special legislative
sessions should be exempted from the application of the clause relating
to the passing of emergency measures. The act providing that the
laws passed by the special session should become operative within ten
days after enactment was accordingly unconstitutional, and the acts
which had not been declared by the requisite two-thirds majority to
be emergency measures were subject to referendum in the usual manner.

Suffrage — Extension to Women in Primary Elections by Legislative
Act. Hamilton v. Davis (Texas, Court of Civil Appeals, December
13, 1919, 217 S. W. 431). A statute of 1918 granted to female citizens
who hftve all the qualifications of electors except that of sex the right
to vote in primary elections. The appellant was a candidate for
nomination for the state legislature and sought an injunction restrain-
ing the enforcement of the act on the alleged ground of its unconsti-
tutionality. His contention was that the word "election" as used in
section 2, article 6 of the Texas constitution defining the qualifications
of voters includes primary elections. The court rejected this view and
upheld the vaUdity of the law. While previous decisions had held that
primary elections were within the meaning of the constitutional pro-
visions giving the courts jurisdiction in cases of contested elections,
the court declared that it was unnecessary to attach the same mean-
ing to the word election wherever it was used. It should be construed
in the light of the purpose of the provision in which it was used. While
it should be interpreted broadly in the clause relating to contested
elections so that the remedial purpose of that provision might have the
fullest possible effect, it should be construed strictly when used in the
clause defining the qualifications of voters so as not to "thwart the
effort of the legislature to extend a valuable privilege to a worthy
class of citizens." The correctness of this construction is further
emphasized by the fact that state legislatures have frequently estab-
lished different quaUfications for voting in primary elections from those
which apply in general elections. It is common for primary statutes
to require test oaths of party allegiance as a condition of voting in the
primary, although the requirement of such oaths would be clearly
unconstitutional ii appUed to regular elections. If a legislature may
enact that only members of political parties shall participate in primary
elections it may with equal propriety extend that privilege to women.



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470 THE AMERICAN POLITICAL SCIENCE REVIEW

Taxation — Public Purpose — Redamaiion of Waste Lands for Home-
stead Purposes. State v. Clausen (Washington, March 30, 1920,
188 Pac. 538). An act of the legislature of Washington passed in 1919
authorized the creation of a state reclamation board endowed with
very wide powers. This board was authorized to acquire for the state
private property suitable for farms and farm laborers' allotments, to
make such improvements as might be necessary to render the land
habitable, to allot it to applicants either by lease or sale in accordance
with restrictions set forth in the statute. In the allotment of these
homesteads soldiers were to be given preference. This case hinged
upon the question whether the expenditure of the money of the state
for such a purpose was constitutional in view of the well established



Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 46 of 77)