NOTES TO DECISIONS

1. Separation of Powers.

All the powers entrusted to government are divided into three departments, the executive, the legislative, and the judicial, and the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined, and that the persons entrusted with power in any of these branches shall not be permitted to encroach upon the powers confided to the others. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

Sections 52-1201 (now § 53-10-101) and 52-1204 (now § 53-10-104) are not unconstitutional as constituting an unlawful delegation of legislative powers in referring to federal law for a definition of “legend drugs.” McLean v. State, 527 S.W.2d 76, 1975 Tenn. LEXIS 635 (Tenn. 1975).

2. Powers of Congress.

The only legislative powers of congress are those specified in the constitution. Louisville & N. R. Co. v. County Court of Davidson, 33 Tenn. 637, 1854 Tenn. LEXIS 81 (1854).

U.S. Const. art. 1, § 1 grants to congress the right, within the restrictions imposed by the constitution, to enact, in its discretion, any statute appropriate to accomplish the purposes for which this government was established. Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 1906 U.S. LEXIS 1541, 6 Ann. Cas. 362 (1906).

The government of the United States is one of enumerated powers, and the enumeration of the powers granted is to be found in the constitution, and in that alone. Kansas v. Colorado, 206 U.S. 46, 27 S. Ct. 655, 51 L. Ed. 956, 1907 U.S. LEXIS 1145 (1907).

3. —Legislative Veto.

The real issue facing courts in cases involving statutes in which the legislative veto has not been exercised is whether the delegation of authority is accompanied by sufficient standards to permit the executive to constitutionally exercise the power given. Muller Optical Co. v. EEOC, 743 F.2d 380, 1984 U.S. App. LEXIS 17016 (6th Cir. 1984).

The existence of a one-house veto provision in a statute does not render the statute invalid but only renders the act of congress, if it attempts to exercise its one-house veto, invalid. Muller Optical Co. v. EEOC, 743 F.2d 380, 1984 U.S. App. LEXIS 17016 (6th Cir. 1984) (reorganization scheme containing one-house veto provision).

4. Delegation of Legislative Power.

Statute seeking to regulate bituminous coal industry was invalid as delegating legislative power. Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160, 1936 U.S. LEXIS 950 (1936). But see United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626, 1995 U.S. LEXIS 3039 (1995).

Provisions of the Tennessee Drug Control Act authorizing the commissioner of mental health and the commissioner of public health to add diazepam to Schedule IV were not an unconstitutional delegation of legislative authority. State v. Edwards, 572 S.W.2d 917, 1978 Tenn. LEXIS 663 (Tenn. 1978).

The federal sentencing guidelines promulgated by the sentencing commission are unconstitutional and unenforceable. United States v. Williams, 691 F. Supp. 36, 1988 U.S. Dist. LEXIS 6006 (M.D. Tenn. 1988), aff'd without opinion, U.S. v. Hayes, 884 F.2d 1393 (6th Cir. Tenn. 1989), aff'd, United States v. Hayes, 884 F.2d 1393, 1989 U.S. App. LEXIS 13929 (6th Cir. Tenn. 1989).

The provisions of the federal sentencing act pertaining to the sentencing guidelines are severed from all remaining provisions of the act, which shall remain valid and fully enforceable. United States v. Williams, 691 F. Supp. 36, 1988 U.S. Dist. LEXIS 6006 (M.D. Tenn. 1988), aff'd without opinion, U.S. v. Hayes, 884 F.2d 1393 (6th Cir. Tenn. 1989), aff'd, United States v. Hayes, 884 F.2d 1393, 1989 U.S. App. LEXIS 13929 (6th Cir. Tenn. 1989).

5. —Executive and Administrative Officers.

Congress may vest in executive and administrative officers and boards the power to make necessary rules and regulations to enforce a law. Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278, 1908 U.S. LEXIS 1411 (1908); United States v. Grimaud, 220 U.S. 506, 31 S. Ct. 480, 55 L. Ed. 563, 1911 U.S. LEXIS 1695 (1911); First Nat'l Bank v. Fellows ex rel. Union Trust Co., 244 U.S. 416, 37 S. Ct. 734, 61 L. Ed. 1233, 1917 U.S. LEXIS 1654 (1917); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S. Ct. 42, 77 L. Ed. 175, 1932 U.S. LEXIS 6 (1932).

Power of congress to delegate to the secretary of agriculture authority to promulgate administrative regulations under its acts is well recognized. United States v. Reese, 27 F. Supp. 833, 1939 U.S. Dist. LEXIS 2721 (W.D. Tenn. 1939).

Provisions of the Agricultural Adjustment Act of 1938 providing for payment and collection of penalties for violations of marketing quota provisions of the act do not unlawfully delegate to the secretary of agriculture the legislative and taxing powers of the government. Rodgers v. United States, 138 F.2d 992, 1943 U.S. App. LEXIS 2727 (6th Cir. 1943).

6. —President.

The flexible tariff provision of the Tariff Act of 1922 was not invalid as a delegation to the president of legislative power. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S. Ct. 348, 72 L. Ed. 624, 1928 U.S. LEXIS 284 (1928).

It is not unconstitutional for congress to invest the president with the power of allocation of materials when standards are established to which the president must conform in the exercise of the power. O'Neal v. United States, 140 F.2d 908, 1944 U.S. App. LEXIS 4076, 151 A.L.R. 1474 (6th Cir. Feb. 11, 1944), cert. denied, 322 U.S. 729, 64 S. Ct. 945, 88 L. Ed. 1565, 1944 U.S. LEXIS 829 (1944).

Order of president seizing steel mills, which directed that presidential policy be executed in a manner prescribed by the president was unconstitutional, since it was an attempt to enact a law, which power is restricted to congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 1952 U.S. LEXIS 2625, 47 Ohio Op. 430, 26 A.L.R.2d 1378 (1952).

7. —Courts.

Congress may delegate to the federal courts the power to make and alter rules of procedure in actions. Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 1911 U.S. LEXIS 1725 (1911).

Court order, enforcing charge imposed on township for water hydrant rental by receiver appointed by state court upon default of bond issue based upon provisions of state statute, did not violate federal constitution on the ground that mandatory order amounted to exercise of legislative and administrative powers by the judiciary. Farmington Tp. v. Warrenville State Bank, 185 F.2d 260, 1950 U.S. App. LEXIS 3264 (6th Cir. 1950).

The federal Magistrates Act, codified as 28 U.S.C. §§ 631 et seq., is constitutional. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 1985 U.S. App. LEXIS 29638, 92 A.L.R. Fed. 661 (6th Cir. Tenn. 1985).

Collateral References.

Civil jurisdiction of magistrates under Federal Magistrates Act of 1968 (28 U.S.C. § 631 et seq.). 128 A.L.R. Fed. 115.

NOTES TO DECISIONS

1. Clause 1.

2. —Qualifications of Electors.

For the elections of members of congress, the constitution merely adopts the qualifications already required by each state for voting for the more numerous branch of the state legislature. Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274, 1884 U.S. LEXIS 1726 (1884).

The right to vote for members of congress is dependent on the federal constitution and laws, and is not governed by the laws of the respective states. Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274, 1884 U.S. LEXIS 1726 (1884); Wiley v. Sinkler, 179 U.S. 58, 21 S. Ct. 17, 45 L. Ed. 84, 1900 U.S. LEXIS 1845 (1900); Swafford v. Templeton, 185 U.S. 487, 22 S. Ct. 783, 46 L. Ed. 1005, 1902 U.S. LEXIS 916 (1902); United States v. Aczel, 219 F. 917, 1915 U.S. Dist. LEXIS 1780 (D. Ind. 1915).

Congress has the power to abrogate all state laws and constitutional provisions which prescribe the method by which an otherwise qualified elector may cast his ballot in congressional elections, although it may not interfere with the method designated by a state legislature for the appointment of presidential electors. Commonwealth ex rel. Dummitt v. O'Connell, 298 Ky. 44, 181 S.W.2d 691, 1944 Ky. LEXIS 837 (1944).

3. Clause 2.

4. —Construction.

The word “state” is used in U.S. Const. art. 1, § 2, cl. 2 in the geographical sense. Texas v. White, 74 U.S. 700, 19 L. Ed. 227, 1868 U.S. LEXIS 1056 (1868), overruled, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885), overruled in part, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885).

5. —Qualifications of Representatives.

Oregon statute requiring one elected as a circuit judge to take an oath that he will not accept any other office, except judicial offices, during the term for which he had been elected, does not disqualify him from acting as representative in congress. Ekwall v. Stadelman, 146 Ore. 439, 30 P.2d 1037, 1934 Ore. LEXIS 68 (1934).

Candidate for representative in congress could not be barred from ballot on the ground that affidavit had not been executed that she was not a subversive person as required by state law. Shub v. Simpson, 196 Md. 177, 76 A.2d 332, 1950 Md. LEXIS 403, appeal dismissed, 340 U.S. 881, 71 S. Ct. 198, 95 L. Ed. 640, 1950 U.S. LEXIS 1413 (1950).

Notwithstanding provisions of Minnesota constitution, name of candidate for office of representative in congress from Minnesota district could not be refused place on ballot merely because of candidate's conviction, nine years previously of conspiracy to advocate overthrow of federal government, since qualifications could not be added too by the state. Danielson v. Fitzsimmons, 232 Minn. 149, 44 N.W.2d 484, 1950 Minn. LEXIS 739 (1950).

6. Clause 3.

7. —Construction.

The word “state” refers to a geographical division, and not to a political unit. Texas v. White, 74 U.S. 700, 19 L. Ed. 227, 1868 U.S. LEXIS 1056 (1868), overruled, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885), overruled in part, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885).

The words “direct taxes” in U.S. Const. art. 1, § 2, cl. 3 are used in their natural and obvious sense. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108, 1895 U.S. LEXIS 2280 (1895), superseded by statute as stated in, Penn Mut. Indem. Co. v. Commissioner, 277 F.2d 16, 1960 U.S. App. LEXIS 4925, 5 A.F.T.R.2d (RIA) 1171, 60-1 U.S. Tax Cas. (CCH) P9389 (6th Cir. 1960), superseded by statute as stated in, Graf v. Commissioner, T.C. Memo 1982-317, 1982 Tax Ct. Memo LEXIS 437, 44 T.C.M. (CCH) 66, T.C.M. (RIA) P82317, superseded by statute as stated in, Union Elec. Co. v. United States, 363 F.3d 1292, 2004 U.S. App. LEXIS 6389 (6th Cir. 2004), superseded by statute as stated in, Curtis v. Dep't of Revenue, 2004 Ore. Tax LEXIS 156 (2004), superseded by statute as stated in, Nat’l Fed’n of Indep. Bus. v. Sebelius, 183 L. Ed. 2d 450, 132 S. Ct. 2566, 567 U.S. 519, 2012 U.S. LEXIS 4876 (U.S. 2012).

8. —Apportionment of Representatives.

U.S. Const. art. 1, § 2 provides for apportionment upon the basis of the enumeration, but does not expressly provide for apportionment by congress after each enumeration; yet this power irresistibly flows from the duty positively enjoined. Prigg v. Pennsylvania, 41 U.S. 539, 10 L. Ed. 1060, 1842 U.S. LEXIS 387 (1842), superseded by statute as stated in, United States ex rel. Grano v. Anderson, 318 F. Supp. 263, 1970 U.S. Dist. LEXIS 10286 (D. Del. 1970).

U.S. Const. amend. 14, § 2, abrogated that part of U.S. Const. art. 1, § 2 providing for counting only three-fifths of slaves. Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643, 1884 U.S. LEXIS 1857 (1884).

An act of the state legislature dividing the state into congressional districts, and providing for the holding of election of senators and representatives, to be valid, must be approved by the governor of the state, or be passed over his veto, where the governor is vested with the power of approval or of vetoing legislative acts. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (1932); Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805, 1932 U.S. LEXIS 441 (1932); Carroll v. Becker, 285 U.S. 380, 52 S. Ct. 402, 76 L. Ed. 807, 1932 U.S. LEXIS 442 (1932).

Under this provision, additional representatives allotted to a state under a reapportionment act should be elected by the state at large until the creation of new district; and where the representatives of a state have been decreased in number, all representatives should be elected at large until such redistricting. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (1932).

9. —Direct Taxes.

The tax levied by act of congress on the notes of any state bank, or state banking association, that may be paid out, is not a direct tax within the meaning of the constitution. Veazie Bank v. Fenno, 75 U.S. 533, 19 L. Ed. 482, 1868 U.S. LEXIS 1130 (1868).

A tax on the rents or income of real estate is a direct tax within the meaning of this provision of the constitution. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108, 1895 U.S. LEXIS 2280 (1895), superseded by statute as stated in, Penn Mut. Indem. Co. v. Commissioner, 277 F.2d 16, 1960 U.S. App. LEXIS 4925, 5 A.F.T.R.2d (RIA) 1171, 60-1 U.S. Tax Cas. (CCH) P9389 (6th Cir. 1960), superseded by statute as stated in, Graf v. Commissioner, T.C. Memo 1982-317, 1982 Tax Ct. Memo LEXIS 437, 44 T.C.M. (CCH) 66, T.C.M. (RIA) P82317, superseded by statute as stated in, Union Elec. Co. v. United States, 363 F.3d 1292, 2004 U.S. App. LEXIS 6389 (6th Cir. 2004), superseded by statute as stated in, Curtis v. Dep't of Revenue, 2004 Ore. Tax LEXIS 156 (2004), superseded by statute as stated in, Nat’l Fed’n of Indep. Bus. v. Sebelius, 183 L. Ed. 2d 450, 132 S. Ct. 2566, 567 U.S. 519, 2012 U.S. LEXIS 4876 (U.S. 2012).

Taxes levied upon personal property, or on the income of personal property, are direct taxes within the meaning of this provision of the constitution. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108, 1895 U.S. LEXIS 2280 (1895), superseded by statute as stated in, Penn Mut. Indem. Co. v. Commissioner, 277 F.2d 16, 1960 U.S. App. LEXIS 4925, 5 A.F.T.R.2d (RIA) 1171, 60-1 U.S. Tax Cas. (CCH) P9389 (6th Cir. 1960), superseded by statute as stated in, Graf v. Commissioner, T.C. Memo 1982-317, 1982 Tax Ct. Memo LEXIS 437, 44 T.C.M. (CCH) 66, T.C.M. (RIA) P82317, superseded by statute as stated in, Union Elec. Co. v. United States, 363 F.3d 1292, 2004 U.S. App. LEXIS 6389 (6th Cir. 2004), superseded by statute as stated in, Curtis v. Dep't of Revenue, 2004 Ore. Tax LEXIS 156 (2004), superseded by statute as stated in, Nat’l Fed’n of Indep. Bus. v. Sebelius, 183 L. Ed. 2d 450, 132 S. Ct. 2566, 567 U.S. 519, 2012 U.S. LEXIS 4876 (U.S. 2012).

Act of congress of 1910 assessing a tax on the income of corporations was constitutional, as it is not a direct tax but an excise, and does not need to be apportioned. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S. Ct. 342, 55 L. Ed. 389, 1911 U.S. LEXIS 1664 (1911).

A graduated tax on transfers of property inter vivos, not made in contemplation of death, is not a direct tax, and is not required to be appointed under U.S. Const. art. 1, § 2. Bromley v. McCaughn, 280 U.S. 124, 50 S. Ct. 46, 74 L. Ed. 226, 1929 U.S. LEXIS 455 (1929).

A tax imposed on life memberships in a social country club is not a direct tax but an excise tax exacted with respect to a privilege and need not be apportioned according to population. Congressional Country Club v. United States, 44 F.2d 266, 1930 U.S. Ct. Cl. LEXIS 348 (Ct. Cl. 1930), cert. denied, 283 U.S. 836, 51 S. Ct. 485, 75 L. Ed. 1447, 1931 U.S. LEXIS 325 (1931).

The decedents' estates provisions of the Revenue Act of 1918, increasing the tax of Acts 1916 on gifts made in contemplation of death, where a gift was made while the 1916 Act was in effect, and decedent died in 1920, did not violate U.S. Const. art. 1, § 2 as making the increased tax a direct tax rather than an indirect tax on privileges. Milliken v. United States, 283 U.S. 15, 51 S. Ct. 324, 75 L. Ed. 809, 1931 U.S. LEXIS 122 (1931).

Taxation of social security benefits does not violate the prohibition against the levy of direct taxes without apportionment according to population. Lansden v. Marsh, 961 F. Supp. 1143, 1997 U.S. Dist. LEXIS 1688 (M.D. Tenn. 1997).

10. Clause 4.

11. —Construction.

The word “election” includes primaries. United States v. Malphurs, 46 F. Supp. 903, 1942 U.S. Dist. LEXIS 2416 (S.D. Fla. 1942); Bottomly v. Ford, 117 Mont. 160, 157 P.2d 108, 1945 Mont. LEXIS 44 (1945).

The authority to provide for the holding of a special election to nominate candidates to be voted for at a special election to fill a vacancy in congress is implied from U.S. Const. art. 1, § 2. State ex rel. Campbell v. Durbin, 81 Ohio App. 398, 37 Ohio Op. 224, 79 N.E.2d 791, 1947 Ohio App. LEXIS 616 (1947).

12. —Elections.

The right to vote for United States senators is derived from the constitution of the United States. United States v. Aczel, 219 F. 917, 1915 U.S. Dist. LEXIS 1780 (D. Ind. 1915), aff'd, Aczel v. United States, 232 F. 652, 1916 U.S. App. LEXIS 1864 (7th Cir. 1916).

Act of congress of June 14, 1914, ch. 103, § 1 (Mason's U.S. Code, title 2, § 1; U.S.C., title 2, § 1; F.C.A., title 2, § 1), prescribes the time for electing United States senators.

Congress may make rules for the election of members of congress, and may prescribe duties for officers acting under state laws, and prescribe penalties for a violation of such acts of congress. Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717, 1879 U.S. LEXIS 1833 (Tenn. 1879); Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274, 1884 U.S. LEXIS 1726 (1884); In re Coy, 127 U.S. 731, 8 S. Ct. 1263, 32 L. Ed. 274, 1888 U.S. LEXIS 2448 (1888).

13. Clause 5.

14. —Impeachment Proceedings.

The house of representatives has the sole right to impeach officers of the government, and the senate has the right to try them. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

NOTES TO DECISIONS

1. Clause 3.

2. —Qualifications for Senator.

Provision of Wisconsin constitution that the judges of the circuit court shall hold no office of public trust except a judicial office during the term for which they are respectively elected, and all votes for them for any office except a judicial office shall be void did not disqualify a circuit court judge as candidate for the nomination for the office of United States senator. State ex rel. Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504, 1946 Wisc. LEXIS 308 (1946).

3. Clause 5.

4. —Officers of Senate.

A standing order of the senate declaring that the sergeant at arms may appoint deputies to serve process or perform other duties, and that such deputies shall be “officers of the senate” and the office of deputy having been recognized by congress by appropriations for compensation, such deputy had power to serve a subpoena directed to the sergeant at arms. McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 1927 U.S. LEXIS 985, 50 A.L.R. 1 (1927).

5. Clause 6.

6. —Construction.

The maxim of English constitutional law that the king can do no wrong does not apply to the president in view of U.S. Const. art. 1, § 3, cl. 6. Langford v. United States, 101 U.S. 341, 25 L. Ed. 1010, 1879 U.S. LEXIS 1924 (Tenn. 1880).

7. —Impeachments.

The house of representatives has the sole right to impeach officers of the government, and the senate has the right to try them. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

Judges of both the supreme and federal courts are completely independent of the executive department of the government and they can be removed from office only by resignation or by impeachment by the house of representatives and conviction by the senate. Clark v. United States, 72 F. Supp. 594, 1947 U.S. Ct. Cl. LEXIS 60 (Ct. Cl. 1947), cert. denied, 333 U.S. 833, 68 S. Ct. 457, 92 L. Ed. 1117, 1948 U.S. LEXIS 2568 (1948), reh'g denied, Clark v. United States, 335 U.S. 838, 69 S. Ct. 12, 93 L. Ed. 390, 1948 U.S. LEXIS 1910 (1948).

NOTES TO DECISIONS

1. Construction.

The “elections” referred to in U.S. Const. art. 1, § 4 are only the final elections by the electors for senators and representatives, and not the primary elections. Newberry v. United States, 256 U.S. 232, 41 S. Ct. 469, 65 L. Ed. 913, 1921 U.S. LEXIS 1632 (1921), superseded by statute as stated in, Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 821, 1975 U.S. App. LEXIS 13132, 75-2 U.S. Tax Cas. (CCH) P9750 (6th Cir. 1975) , superseded by statute as stated in, Weber v. Heaney, 793 F. Supp. 1438, 1992 U.S. Dist. LEXIS 9089 (D. Tenn. 2006).

U.S. Const. art. 1, § 4 was the only constitutional source of power of congress over elections of senators and representatives before the adoption of U.S. Const. amend. 7. Newberry v. United States, 256 U.S. 232, 41 S. Ct. 469, 65 L. Ed. 913, 1921 U.S. LEXIS 1632 (1921), superseded by statute as stated in, Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 821, 1975 U.S. App. LEXIS 13132, 75-2 U.S. Tax Cas. (CCH) P9750 (6th Cir. 1975) , superseded by statute as stated in, Weber v. Heaney, 793 F. Supp. 1438, 1992 U.S. Dist. LEXIS 9089 (D. Tenn. 2006).

In U.S. Const. art. 1, § 4, cl. 1, the states are given, and in fact, exercise wide discretion in the formulation of a system for the choice by the people of the representatives in congress; therefore, Tennessee, like all states, is free to determine the time, place and manner of holding congressional and senatorial elections, unless congress specifies otherwise. Millsaps v. Thompson, 96 F. Supp. 2d 720, 2000 U.S. Dist. LEXIS 5768 (E.D. Tenn. 2000), aff'd, 259 F.3d 535, 2001 FED App. 256P, 2001 U.S. App. LEXIS 17260 (6th Cir. 2001).

2. Elections.

The mere fact that a representative in congress is voted for at an election of state and county officers does not authorize congress to regulate such election in matters which do not relate to or affect the election in so far as it concerns the United States. Ex parte Perkins, 29 F. 900, 1886 U.S. Dist. LEXIS 223 (C.C.D. Ind. 1887).

The power of congress to protect the poll books containing the votes for a member of congress from falsification and tampering exists under U.S. Const. art. 1, § 4, even though there may be no specific intent to tamper with the congressional votes, but only with those for state officers. In re Coy, 31 F. 794, 1887 U.S. App. LEXIS 2688 (D. Ind. 1887), aff'd, 127 U.S. 731, 8 S. Ct. 1263, 32 L. Ed. 274, 1888 U.S. LEXIS 2448 (1888).

Congress has power to enact laws providing that the persons whose names are put on the election ballots shall have filed certain sworn statements as to contributions and expenditures theretofore made; and congress, therefore, has power to conduct an investigation looking to such legislation, and to require witnesses to testify as to matters pertaining to a primary campaign, under U.S. Const. art. 1, § 4. United States v. Seymour, 50 F.2d 930, 1931 U.S. Dist. LEXIS 1440 (D. Neb. 1931).

An election is more than the mere casting of ballots and is the entire process by which both voters and officials make a final selection of an officeholder; therefore, the Tennessee Early Voting System (TEVS) presents no obstacle to accomplishing the goals of the federal election day statutes and is not preempted by the federal laws designating federal election day. Millsaps v. Thompson, 96 F. Supp. 2d 720, 2000 U.S. Dist. LEXIS 5768 (E.D. Tenn. 2000), aff'd, 259 F.3d 535, 2001 FED App. 256P, 2001 U.S. App. LEXIS 17260 (6th Cir. 2001).

3. Clause 1.

4. —Reapportionments.

A legislative apportionment act is subject to veto by the governor, especially where there has been a practical construction in the particular state, by which the word “legislature” has been treated as applying to the lawmaking power of the state, as evidenced by submission of former apportionment acts to the governor for his approval. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (1932); Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805, 1932 U.S. LEXIS 441 (1932); Carroll v. Becker, 285 U.S. 380, 52 S. Ct. 402, 76 L. Ed. 807, 1932 U.S. LEXIS 442 (1932).

Where reapportionment statute provides for additional representatives, they are to be elected by the state at large, under U.S. Const. art. 1, § 4, where no valid redistricting statute has been passed by the state. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (1932); Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805, 1932 U.S. LEXIS 441 (1932).

5. Federal Preemption.

The Tennessee Early Voting System (TEVS) does not conflict with federal enactments because the final selection is not made before the federal election day; without the final selection, the winning candidate is not elected. Millsaps v. Thompson, 96 F. Supp. 2d 720, 2000 U.S. Dist. LEXIS 5768 (E.D. Tenn. 2000), aff'd, 259 F.3d 535, 2001 FED App. 256P, 2001 U.S. App. LEXIS 17260 (6th Cir. 2001).

Under the Tennessee Early Voting System (TEVS), the combined actions of voters and officials meant to make a final selection of an officeholder occur only on federal election day as required by federal law. Millsaps v. Thompson, 259 F.3d 535, 2001 FED App. 256P, 2001 U.S. App. LEXIS 17260 (6th Cir. 2001).

The Tennessee Early Voting System (TEVS) presents no obstacle to accomplishing the goals of the federal election day statutes; Tennessee's effort to increase voter participation does not conflict with, and is therefore not preempted by, the federal laws designating federal election day. Millsaps v. Thompson, 259 F.3d 535, 2001 FED App. 256P, 2001 U.S. App. LEXIS 17260 (6th Cir. 2001).

NOTES TO DECISIONS

1. Clause 1.

2. —Election of Members.

One claiming a nomination for United States senator in a primary held under state law, though it is a part of the state election machinery, has no right secured by the laws of the United States. Johnson v. Stevenson, 170 F.2d 108, 1948 U.S. App. LEXIS 2566 (5th Cir. 1948), cert. denied, 336 U.S. 904, 69 S. Ct. 491, 93 L. Ed. 1069, 1949 U.S. LEXIS 2822 (1949); Carpenter v. Rohm & H. Co., 336 U.S. 929, 69 S. Ct. 654, 93 L. Ed. 1090, 1949 U.S. LEXIS 2714 (1949).

3. —Corrupt Practices Act.

State courts have no jurisdiction to adjudge the election of a member of congress invalid for violation of the State Corrupt Practices Act. State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 212 N.W. 604, 1927 Minn. LEXIS 1448 (1927).

Congress, under U.S. Const. art. 1, § 5, has power to investigate corrupt practices in primary elections for senators, to summon witnesses to appear, and to issue warrants of arrest for witness who, in its discretion, it believes would not otherwise appear. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S. Ct. 452, 73 L. Ed. 867, 1929 U.S. LEXIS 62 (1929).

Investigation of fraudulent use of names in primary election was within power of senate though transaction involved individual who never became candidate. Seymour v. United States, 77 F.2d 577, 1935 U.S. App. LEXIS 4654, 99 A.L.R. 880 (8th Cir. 1935).

4. —Quorum.

When a quorum is present, the votes of a majority of the quorum are sufficient to pass a bill. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (U.S. Feb. 29, 1892).

5. —Attendance.

The penalty which each house is authorized to inflict in order to compel attendance of absent members may be imprisonment, and may be for violation of some order or standing rule on the subject. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

6. Clause 2.

7. —Control of Members.

Each house of congress has power to punish its own members for contempt or disorderly behavior, but they do not possess general powers to punish for contempt. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

The right to expel a member extends to all cases where the offense is such as in the judgment of the senate is inconsistent with the trust and duty of a member. In re Chapman, 17 S. Ct. 677, 166 U.S. 661, 41 L. Ed. 1154, 1897 U.S. LEXIS 2058 (1897).

Congress may make it a penal offense for its members to act as attorneys in cases where the United States is interested. Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 1906 U.S. LEXIS 1541, 6 Ann. Cas. 362 (1906).

8. —Rules.

Under the provision authorizing each house to determine its rules of proceedings, it has power to adopt any method not violating the constitution or fundamental rights, and a rule cannot be attacked because another method would be fairer or better, nor because a different rule has been in effect for a long time. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (U.S. Feb. 29, 1892).

The construction of rules adopted is a judicial function where it affects others than members of the legislative body; the courts should give great weight to the legislative custom, but are not concluded by it; rules of senate as to right to reconsider confirmation of appointment of member of federal trade commission, construed. United States v. Smith, 286 U.S. 6, 52 S. Ct. 475, 76 L. Ed. 954, 1932 U.S. LEXIS 594 (1932).

9. —Committee Hearings.

As to the validity of the act of congress making it a criminal offense for a witness before a committee of either house of congress to refuse to answer questions, and the power of the courts to release a person convicted under such act, see In re Chapman, 17 S. Ct. 677, 166 U.S. 661, 41 L. Ed. 1154, 1897 U.S. LEXIS 2058 (1897).

Congress has power to subpoena witnesses to appear and testify concerning a matter within its legislative powers. McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 1927 U.S. LEXIS 985, 50 A.L.R. 1 (1927).

10. Clause 3.

11. —Journal.

Where a duly enrolled bill is completely authenticated as a law of the United States, no reference can be had to the journal of either house, to reports of committees, or to other documents printed by congress to show that part of the bill as finally enacted does not appear in the act as authenticated. Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294, 1892 U.S. LEXIS 2046 (U.S. 1892).

The journal is presumed to show the truth. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (U.S. Feb. 29, 1892).

12. Clause 4.

13. —Adjournment.

The adjournment referred to in U.S. Const. art. 1, § 5, cl. 4 is not limited to a final adjournment of a congress which terminates its legislative existence. Pocket Veto Case, 279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894, 1929 U.S. LEXIS 364, 64 A.L.R. 1434 (1929).

NOTES TO DECISIONS

1. Compensation.

A member who receives his certificate of admission, and is seated, is prima facie entitled to the salary. Page v. United States, 127 U.S. 67, 8 S. Ct. 1026, 32 L. Ed. 65, 1888 U.S. LEXIS 1965 (1888).

2. Privilege from Arrest.

The exceptions to the privilege from arrest in this provision include all crimes, and the privilege, therefore, exempts members of congress from arrest only in civil cases. Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278, 1908 U.S. LEXIS 1411 (1908).

A legislator's immunity from suit when performing legislative duties prevents the courts from making the legislature justify its decision to hold closed session. Mayhew v. Wilder, 46 S.W.3d 760, 2001 Tenn. App. LEXIS 17 (Tenn. Ct. App. 2001).

3. Speak or Debate.

This provision giving privilege to speak and debate in congress is not limited to words in debate, but extends to things generally done in a session by the members in relation to the business before the house. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

This provision as to freedom of debate and speech is grounded on public policy and should be liberally construed; so, a speech in the senate is absolutely privileged, even though allegedly spoken not in the discharge of the member's official duties. Cochran v. Couzens, 42 F.2d 783, 1930 U.S. App. LEXIS 4340 (D.C. Cir. 1930), cert. denied, 282 U.S. 874, 51 S. Ct. 79, 75 L. Ed. 772, 1930 U.S. LEXIS 275 (1930).

NOTES TO DECISIONS

1. Clause 1.

2. —Revenue Bills.

The provisions that bills for raising revenue must originate in the house of representatives applies to bills levying taxes, and not to those incidentally creating revenue. United States v. Norton, 91 U.S. 566, 23 L. Ed. 454, 1875 U.S. LEXIS 1406 (1875); Millard v. Roberts, 202 U.S. 429, 26 S. Ct. 674, 50 L. Ed. 1090, 1906 U.S. LEXIS 1544 (1906).

An act of congress providing for the elimination of grade crossings and for a union railway station in the District of Columbia was not an act to provide for raising revenue. Millard v. Roberts, 202 U.S. 429, 26 S. Ct. 674, 50 L. Ed. 1090, 1906 U.S. LEXIS 1544 (1906).

The senate may amend revenue bills and even change the plan under which the taxes are laid, and such action is not invalid if the amendments are confirmed by the house. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S. Ct. 342, 55 L. Ed. 389, 1911 U.S. LEXIS 1664 (1911).

The senate may amend bills originating in the house as long as the bill remains germane to the subject matter of the bill. Heitman v. United States, 753 F.2d 33, 1984 U.S. App. LEXIS 17580 (6th Cir. 1984).

The Tax Equity and Fiscal Responsibility Act did not violate the origination clause. Heitman v. United States, 753 F.2d 33, 1984 U.S. App. LEXIS 17580 (6th Cir. 1984).

3. Clause 2.

4. —Approval.

There being no law requiring the president to affix a date to his approval of a bill presented to him, the courts may resort to other evidence to ascertain the date of such approval when the date of approval does not appear on the bill. Gardner v. Collector, 73 U.S. 499, 18 L. Ed. 890, 1867 U.S. LEXIS 998 (1867).

When an enrolled bill is signed by the proper officers of each house, and is approved by the president and filed in the department of state, it is conclusive that it was properly passed. Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294, 1892 U.S. LEXIS 2046 (U.S. 1892); United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (U.S. Feb. 29, 1892).

A bill, passed by both houses of congress during the first regular session of congress and presented to the president less than ten days, Sundays excepted, before the adjournment of that session, and neither signed nor returned, under U.S. Const. art. 1, § 7, does not become a law; “ten days” meaning ten calendar days, and adjournment not being limited to final adjournment. Pocket Veto Case, 279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894, 1929 U.S. LEXIS 364, 64 A.L.R. 1434 (1929); Porto Rico Tel. Co. v. Porto Rico, 47 F.2d 484, 1931 U.S. App. LEXIS 3485 (1st Cir. 1931).

Under U.S. Const. art. 1, § 7, a bill, presented to the president less than ten days before final adjournment of congress, may be signed by him within ten days, Sundays excepted, after it was presented to him, even though signed after the final adjournment. Edwards v. United States, 286 U.S. 482, 52 S. Ct. 627, 76 L. Ed. 1239, 1932 U.S. LEXIS 618 (1932).

5. —Veto.

The words “that house” in U.S. Const. art. 1, § 7, cl. 2, relate to both houses as organized and entitled to exert legislative power, assuming the presence of a quorum. Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 39 S. Ct. 93, 63 L. Ed. 239, 1919 U.S. LEXIS 2308, 2 A.L.R. 1589 (1919).

A two-thirds vote of those present is all that is required in each house to pass a bill over the president's veto. Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 39 S. Ct. 93, 63 L. Ed. 239, 1919 U.S. LEXIS 2308, 2 A.L.R. 1589 (1919).

The Webb-Kenyon Law is not invalid because, after its veto, it received in the senate only a two-thirds vote of a quorum, which was less than two-thirds of all the members. Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 39 S. Ct. 93, 63 L. Ed. 239, 1919 U.S. LEXIS 2308, 2 A.L.R. 1589 (1919).

NOTES TO DECISIONS

1. Clause 1.

2. —Debts of the United States.

The “debts” of the United States, as used in this provision, are not limited to those of strictly legal character, but include those of equitable or honorary obligation, not recoverable in a court of law if existing against an individual. United States v. Realty Co., 163 U.S. 427, 16 S. Ct. 1120, 41 L. Ed. 215, 1896 U.S. LEXIS 2279 (1896).

3. —General Welfare.

The “general welfare” clause does not give congress any additional power, but is a limitation on the taxing power; hence it cannot make valid a statute providing for inspection of meats at packing houses, intended for, but not yet in, interstate commerce. United States v. Boyer, 85 F. 425, 1898 U.S. Dist. LEXIS 149 (W.D. Mo. 1898).

U.S. Const. art. 1, § 8 does not restrict congress' power to spend to those powers specified herein; all that is required is that the expenditure be for the “general welfare.” Wolfe v. Merrill Nat'l Lab., Inc., 433 F. Supp. 231, 1977 U.S. Dist. LEXIS 15460 (M.D. Tenn. 1977).

4. —Common Defense.

Tennessee Valley Authority Act, 16 U.S.C. § 831 et seq. which authorized construction of dams in the interest of national defense was constitutional though power generated at government dams was sold to various municipalities, since sale of power was incidental to general purpose to wit, national defense. Tennessee Elec. Power Co. v. TVA, 21 F. Supp. 947, 1938 U.S. Dist. LEXIS 2480 (E.D. Tenn. 1938), aff'd, Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), dismissed, Hicks v. Mutual L. Ins. Co., 59 S. Ct. 54, 305 U.S. 564, 83 L. Ed. 355, 1938 U.S. LEXIS 666 (1938), dismissed, Tennessee Electric Power Co. v. Tennessee Valley Authority, 59 S. Ct. 54, 305 U.S. 663, 83 L. Ed. 430, 1938 U.S. LEXIS 857 (1938).

Congress must necessarily have the authority, exclusive of any court, to determine the requirements of national defense and the amount of tax revenue to be used for defense or military purposes. Farmer v. Rountree, 149 F. Supp. 327, 1956 U.S. Dist. LEXIS 2300 (M.D. Tenn. 1956), aff'd, 252 F.2d 490, 1958 U.S. App. LEXIS 5732 (6th Cir. Tenn. 1958), aff'd, Budd Co. v. United States, 252 F.2d 456, 1957 U.S. App. LEXIS 4953 (3d Cir. Pa. 1957).

5. —Duties, Imposts and Excises.

The power of congress to levy and collect taxes, duties, imposts and excises is coextensive with the territory of the United States. Loughborough v. Blake, 18 U.S. 317, 5 L. Ed. 98, 1820 U.S. LEXIS 258 (1820).

Section 2 of the so-called Harrison Narcotic Drug Act of December 17, 1914, ch. 1 (former Mason's U.S. Code, title 26, § 696; U.S.C., title 26, § 696; F.C.A., title 26, § 696) [repealed], having to do with facilitating the collection of the revenue and requiring written order for narcotic drugs, is not unconstitutional. United States v. Doremus, 249 U.S. 86, 39 S. Ct. 214, 63 L. Ed. 493, 1919 U.S. LEXIS 2229 (1919).

6. — —Uniformity Requirement.

The words “shall be uniform throughout the United States” refer purely to a geographical uniformity and mean “shall operate generally throughout the United States.” Knowlton v. Moore, 178 U.S. 41, 20 S. Ct. 747, 44 L. Ed. 969, 1900 U.S. LEXIS 1658 (1900).

Upon the passage of the Foraker Act of 1900 giving a temporary civil government to Puerto Rico, this territory was not a part of the United States within the meaning of U.S. Const. art. 1, § 8, cl. 1, and congress could impose duties on importations without violation of the uniformity requirement. Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088, 1901 U.S. LEXIS 286 (1901).

The uniformity clause of United States constitution is not violated by the excise tax based upon the gross tonnage by the Act of August 5, 1909, upon the use of foreign built pleasure yachts owned by citizens of the United States, because a like tax is not imposed upon the use of a domestic yacht under similar circumstances. Billings v. United States, 232 U.S. 261, 34 S. Ct. 421, 58 L. Ed. 596, 1914 U.S. LEXIS 1351 (1914); United States v. Bennett, 232 U.S. 299, 34 S. Ct. 433, 58 L. Ed. 612, 1914 U.S. LEXIS 1356 (1914); Rainey v. United States, 232 U.S. 310, 34 S. Ct. 429, 58 L. Ed. 617, 1914 U.S. LEXIS 1358 (1914).

Revenue Act 1926, § 500(a) (2) (Mason's U.S. Code, title 26, § 871; U.S.C., title 26, § 871; F.C.A., title 26, § 871), imposing tax on sale of admission tickets outside of ticket office, held valid, being an excise and not a direct tax, and being a proper classification of subjects for taxation, and therefore answering the requirement of uniformity. Alexander Theatre Ticket Office, Inc. v. United States, 23 F.2d 44, 1927 U.S. App. LEXIS 3131 (2d Cir. 1927).

The provision as to uniformity “throughout the United States” held not to embrace Puerto Rico and the Philippine Islands, and the provisions of the Revenue Act of 1918 discriminating between domestic export corporations and corporations organized under the laws of Puerto Rico and Philippine Islands, held valid. Neuss Hesslein & Co. v. Edwards, 24 F.2d 989, 1928 U.S. Dist. LEXIS 1042 (S.D.N.Y. 1928), aff'd, Neuss, Hesslein & Co. v. Edwards, 30 F.2d 620, 1929 U.S. App. LEXIS 2473 (2d Cir. N.Y. 1929).

An estate tax is not a direct tax requiring apportionment, but falls within the classification of “imposts, duties, and excises” leviable under U.S. Const. art. 1, § 8. It is imposed not on property, but on the privilege of conferring it. United States v. Tyler, 33 F.2d 724, 1929 U.S. App. LEXIS 2810 (4th Cir. 1929), aff'd, 281 U.S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 1930 U.S. LEXIS 404, 69 A.L.R. 758 (1930).

7. —Taxation of State Agencies.

8. — —States.

United States has power in order to collect its taxes and revenues to confer priority for them over those of the states. County of Spokane v. United States, 279 U.S. 80, 49 S. Ct. 321, 73 L. Ed. 621, 1929 U.S. LEXIS 361 (1929). See also North River Coal & Wharf Co. v. McWilliams Bros., 59 F.2d 979, 1932 U.S. App. LEXIS 3509 (2d Cir. 1932), aff'd, 288 U.S. 290, 53 S. Ct. 323, 77 L. Ed. 754, 1933 U.S. LEXIS 987 (1933).

The United States can levy an excise tax on profits from sale of state or municipal securities, so long as it does not affect the state's power to borrow money. Willcuts v. Bunn, 282 U.S. 216, 51 S. Ct. 125, 75 L. Ed. 304, 1931 U.S. LEXIS 840, 71 A.L.R. 1260 (1931).

Although in general an agency of state government is exempt from taxation which would directly interfere with governmental functions, yet the United States can tax the income of a trust, created by the state, from oil and gas lease on land of a city. Burnet v. A.T. Jergins Trust, 288 U.S. 508, 53 S. Ct. 439, 77 L. Ed. 925, 1933 U.S. LEXIS 954 (1933).

The immunity of state instrumentalities from federal taxation is implied from the necessity of maintaining our dual system of government, and does not extend beyond that necessity; so, a state university is not entitled to import scientific apparatus, free of tax, for use in its educational departments. Board of Trustees v. United States, 289 U.S. 48, 53 S. Ct. 509, 77 L. Ed. 1025, 1933 U.S. LEXIS 943 (1933).

9. — —Municipalities.

Municipal corporations of the states are not subject to taxation by congress. United States v. Railroad Co., 84 U.S. 322, 21 L. Ed. 597, 1872 U.S. LEXIS 1329 (1872).

Congress cannot tax the sale of a motorcycle to a municipal corporation for use in its police service, as under the constitution, the state and her governmental agencies are free from federal taxation. Indian Motocycle Co. v. United States, 283 U.S. 570, 51 S. Ct. 601, 75 L. Ed. 1277, 1931 U.S. LEXIS 167 (1931).

10. — —Courts.

Congress has no power to levy a tax on writs and processes issuing out of state courts. Union Bank v. Hill, 43 Tenn. 325, 1866 Tenn. LEXIS 58 (1866).

Congress has no power to exclude documents from evidence in state courts on the ground that internal revenue stamps have not been affixed as required by law. Sporrer v. Eifler, 48 Tenn. 633, 1870 Tenn. LEXIS 125 (1870); Southern Ins. Co. v. Estes, 106 Tenn. 472, 62 S.W. 149, 1900 Tenn. LEXIS 184, 82 Am. St. Rep. 892, 52 L.R.A. 915 (1900).

11. —Limitation on State's Power.

Where lands in a state are sold for federal taxes, and are bought by the United States, the state cannot levy any taxes thereon for the time when owned by the United States, even as against a later individual purchaser from the government. Van Brocklin v. Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845, 1886 U.S. LEXIS 1822 (1886).

A state is without power to tax property of the United States. Van Brocklin v. Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845, 1886 U.S. LEXIS 1822 (1886).

Persons paying a license tax under the laws of the United States cannot be required by a state to register or publish notice of the same without reference to the performance by such persons of any act within the state. North Dakota ex rel. Flaherty v. Hanson, 215 U.S. 515, 30 S. Ct. 179, 54 L. Ed. 307, 1910 U.S. LEXIS 1857 (1910).

State cannot create lien in favor of federal taxes. In re Caswell Constr. Co., 13 F.2d 667, 1926 U.S. Dist. LEXIS 1217 (N.D.N.Y. 1926).

12. Clause 2.

13. —Power to Borrow Money.

The power to borrow money on the credit of the United States is the power to raise money for the public use on the pledge of the public credit, and may be exercised to meet either present or anticipated expenses and liabilities of the government. Legal Tender Case, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

14. —Government Bonds.

The states cannot, without the consent of congress, tax the obligations of the United States issued as evidence of money loaned to the United States. Weston v. Charleston, 27 U.S. 449, 7 L. Ed. 481, 1829 U.S. LEXIS 414 (1829), overruled in part, North Dakota v. United States, 110 S. Ct. 1986, 495 U.S. 423, 109 L. Ed. 2d 420, 1990 U.S. LEXIS 2574 (1990); Bank v. Supervisors, 74 U.S. 26, 19 L. Ed. 60, 1868 U.S. LEXIS 975 (1868), questioned, American Bank & Trust Co. v. Dallas County, 463 U.S. 855, 103 S. Ct. 3369, 77 L. Ed. 2d 1072, 1983 U.S. LEXIS 109 (1983).

Bonds of the United States cannot be taxed under state laws. If the assets of a bank consist of United States bonds, such assets cannot be taxed by a state under any form of assessment. Home Sav. Bank v. Des Moines, 205 U.S. 503, 27 S. Ct. 571, 51 L. Ed. 901, 1907 U.S. LEXIS 1374 (1907).

A Tennessee statute imposing excise tax on net state earning of corporation, less interstate business, does not violate U.S. Const. art. 1, § 8 in not excluding income from United States bonds, as it is not aimed at such income, but is merely partly measured by it. General Sec. Co. v. Williams, 161 Tenn. 50, 29 S.W.2d 662, 1929 Tenn. LEXIS 34 (1930).

United States bonds held by an insurance company doing business in a state are exempt from taxation by the state. National Life & Accident Ins. Co. v. Dempster, 168 Tenn. 446, 79 S.W.2d 564, 1934 Tenn. LEXIS 77 (1934).

Determination by commissioner that proceeds from government bonds should be included by corporation in determining net earnings tax did not violate U.S. Const. art. 1, §§ 8 and 10. National Life & Accident Ins. Co. v. Dempster, 168 Tenn. 446, 79 S.W.2d 564, 1934 Tenn. LEXIS 77 (1934).

Assessment of franchise and excise tax on basis of income realized by taxpayer from income earned from government bonds did not violate U.S. Const. art. 1, § 8. Nashville Trust Co. v. Evans, 195 Tenn. 205, 258 S.W.2d 761, 1953 Tenn. LEXIS 324 (1953).

15. —Legal Tender Notes.

The issue of legal tender notes by the United States is a proper exercise of the power conferred on congress to borrow money. Thayer v. Hedges, 23 Ind. 141, 1864 Ind. LEXIS 190 (1865).

Congress has power to make United States treasury notes a legal tender in the payment of debts. Legal Tender Cases, 79 U.S. 457, 20 L. Ed. 287, 1870 U.S. LEXIS 1220 (May 1, 1871); Dooley v. Smith, 80 U.S. 604, 20 L. Ed. 547, 1871 U.S. LEXIS 1373 (1872); Legal Tender Case, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

A contract, payable by its terms in specie, cannot be discharged against the will of the holder by legal tender notes. Trebilcock v. Wilson, 79 U.S. 687, 20 L. Ed. 460, 1871 U.S. LEXIS 964 (1871).

16. Clause 3.

17. —“Commerce” Defined and Limited.

Commerce is more than traffic; it is intercourse; and persons engaged in the transmission of instruction and information from a state to persons in other states, by means of books, letters, and papers sent through the mails or otherwise, are engaged in interstate commerce. International Textbook Co. v. Pigg, 217 U.S. 91, 30 S. Ct. 481, 54 L. Ed. 678, 1910 U.S. LEXIS 1946 (1910).

While accepting the decision of the state courts as to what constitutes the doing of business in the state, the United States supreme court reserves to itself the right to determine what constitutes interstate commerce. Reaves Lumber Co. v. Cain-Hurley Lumber Co., 152 Tenn. 339, 279 S.W. 257, 1925 Tenn. LEXIS 76 (1926).

What constitutes interstate commerce is not a technical legal conception, but a practical matter to be determined upon a broad consideration of the substance of the whole transaction. State v. Southern Oil Service, Inc., 174 Tenn. 232, 124 S.W.2d 704, 1938 Tenn. LEXIS 84 (1939); Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941); Brown v. Bailey, 177 Tenn. 185, 147 S.W.2d 105, 1940 Tenn. LEXIS 25 (Tenn. Sep. 1941).

The fact that a business having aspects of both interstate and intrastate operations is conducted by a single corporation does not make the entire business either interstate commerce or intrastate commerce, but its character is determined by the particular transactions involved. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

18. — —Original Package Rule.

States cannot prohibit the importation from another state of any article of merchandise and the sale thereof in the original packages unless by authority of congress. Leisy v. Hardin, 135 U.S. 100, 10 S. Ct. 681, 34 L. Ed. 128, 1890 U.S. LEXIS 2007 (1890), superseded by statute as stated in, Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, — FED App. (6th Cir.) —, 2000 U.S. App. LEXIS 22991 (7th Cir. Ind. 2000), superseded by statute as stated in, Granholm v. Heald, 544 U.S. 460, 125 S. Ct. 1885, 161 L. Ed. 2d 796, 2005 U.S. LEXIS 4174, 73 U.S.L.W. 4321, 18 Fla. L. Weekly Fed. S 263 (2005), overruled in part, Arnold's Wines, Inc. v. Boyle, 515 F. Supp. 2d 401, 2007 U.S. Dist. LEXIS 73048 (S.D.N.Y. 2007); Lyng v. Michigan, 135 U.S. 161, 10 S. Ct. 725, 34 L. Ed. 150, 1890 U.S. LEXIS 2008 (1890).

Congress may provide that any merchandise taken into a state while remaining in the original packages shall be subject to the laws of the state. In re Rahrer, 140 U.S. 545, 11 S. Ct. 865, 35 L. Ed. 572, 1891 U.S. LEXIS 2484 (U.S. May 25, 1891).

The commerce clause ceases to apply to articles of interstate commerce the moment the original package is broken. Kimmell v. State, 104 Tenn. 184, 56 S.W. 854, 1899 Tenn. LEXIS 26 (1899); Croy v. Epperson, 104 Tenn. 525, 58 S.W. 235 (1900).

19. — —Shipment of Goods.

Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

20. — — —Contract or Order.

A contract between a foreign corporation and a resident of the state, for the furnishing and installation of machinery within the state, constitutes interstate commerce, and the company may recover on a note and mortgage given by the purchaser notwithstanding the failure of the company to register its charter as required by state law. Milan Milling & Mfg. Co. v. Gorten, 93 Tenn. 590, 27 S.W. 971, 1894 Tenn. LEXIS 3, 26 L.R.A. 135 (1894).

Where buyer, located and operating in a foreign state and unauthorized to do business here, contracts to buy lumber in this state, delivery to be f. o. b. cars, shipment to the foreign state is presumed; and the transaction constitutes interstate commerce. Reaves Lumber Co. v. Cain-Hurley Lumber Co., 152 Tenn. 339, 279 S.W. 257, 1925 Tenn. LEXIS 76 (1926).

Interstate commerce includes shipment of goods from one state to another under contract, whether strictly a sale, consignment or agency. Furst & Thomas v. Brewster, 282 U.S. 493, 51 S. Ct. 295, 75 L. Ed. 478, 1931 U.S. LEXIS 22 (1931).

Where at least six out-of-state contractors participated in the construction of a hotel, at least nine employees were employed from outside Tennessee, at least seven out-of-state vendors supplied more than $380,000 worth of materials for the project, and various out-of-state corporations and banks were involved with insuring and financing the project, it was clear the contract involved “commerce.” Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 1999 Tenn. LEXIS 582 (Tenn. 1999), cert. denied, 530 U.S. 1238, 120 S. Ct. 2679, 147 L. Ed. 2d 289, 2000 U.S. LEXIS 4143 (2000).

21. — — —Negotiation of Sales.

Sale and shipment into state of articles to be given away as premiums by the purchaser to promote the sale of other merchandise held interstate commerce. Hughes Bros. Mfg. Co. v. Cicero Trust & Sav. Bank, 24 F.2d 199, 1928 U.S. App. LEXIS 1999 (5th Cir. 1928).

The negotiation of sales of goods which are in other states, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce and cannot be interfered with, regulated, or taxed by the state in which the negotiation was made, even though there is no discrimination between such business and domestic commerce. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

If the element of transportation between the states is present, a sale of goods is universally held to constitute interstate commerce regardless of which state the agreement of sale was entered into. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

22. — — —Contemplated Shipment.

When goods are shipped from one state into another, and then without unloading, are, under a new contract, reshipped to another point in the same state, the last shipment is not interstate commerce. Gulf, Colo. & S.F. Ry. v. Texas, 204 U.S. 403, 27 S. Ct. 360, 51 L. Ed. 540, 1907 U.S. LEXIS 1467 (1907).

Louisiana statute regulating the taking of shrimp which had been caught for the purpose of shipment in interstate commerce was held invalid. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S. Ct. 1, 73 L. Ed. 147, 1928 U.S. LEXIS 1 (1928).

The shipment of goods from one state to another in fulfillment of a contract of sale where the parties required or contemplated such shipment is interstate commerce. State v. Southern Oil Service, Inc., 174 Tenn. 232, 124 S.W.2d 704, 1938 Tenn. LEXIS 84 (1939).

The absence of a provision from the contract of sale requiring the shipment of goods from without the state is not controlling on the question of whether the shipment involves interstate commerce where such a shipment was contemplated by the parties and was actually made. State v. Southern Oil Service, Inc., 174 Tenn. 232, 124 S.W.2d 704, 1938 Tenn. LEXIS 84 (1939).

23. —Fields of Commerce.

24. — —Atomic Energy.

Atomic bomb is not an article of commerce. Young v. Kellex Corp., 82 F. Supp. 953, 1948 U.S. Dist. LEXIS 3164 (E.D. Tenn. 1948).

25. — —Common Carriers.

Telegraph lines and their business fall under the head of interstate commerce, and are under the control of congress. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 24 L. Ed. 708, 1877 U.S. LEXIS 1621 (1877); Telegraph Co. v. Texas, 105 U.S. 460, 26 L. Ed. 1067, 1881 U.S. LEXIS 2149 (1881), limited, Western Union Tel. Co. v. Pennsylvania R. Co., 195 U.S. 540, 25 S. Ct. 133, 49 L. Ed. 312, 1904 U.S. LEXIS 695 (1904); Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 7 S. Ct. 1126, 30 L. Ed. 1187, 1887 U.S. LEXIS 2113 (1887); Ratterman v. Western Union Tel. Co., 127 U.S. 411, 8 S. Ct. 1127, 32 L. Ed. 229, 1888 U.S. LEXIS 2006, 6 Ohio F. Dec. 74 (1888), criticized, Goldberg v. Sweet, 109 S. Ct. 582, 488 U.S. 252, 102 L. Ed. 2d 607, 1989 U.S. LEXIS 308 (1989); Leloup v. Port of Mobile, 127 U.S. 640, 8 S. Ct. 1380, 32 L. Ed. 311, 1888 U.S. LEXIS 2028 (1888); Western Union Tel. Co. v. Boegli, 251 U.S. 315, 40 S. Ct. 167, 64 L. Ed. 281, 1920 U.S. LEXIS 1708 (1920).

The fact that in transporting goods from one point in a state to another point in the same state, the line of the carrier between such points passes through a portion of another state, does not make such transportation interstate commerce. Lehigh Valley R.R. v. Pennsylvania, 145 U.S. 192, 12 S. Ct. 806, 36 L. Ed. 672, 1892 U.S. LEXIS 2130 (U.S. May 2, 1892); Seawell v. Kansas City, Ft. S. & M.R.R., 119 Mo. 222, 24 S.W. 1002, 1893 Mo. LEXIS 122 (1893), criticized, Hanley v. Kansas City S. R. Co., 23 S. Ct. 214, 187 U.S. 617, 47 L. Ed. 333, 1903 U.S. LEXIS 1679 (1903).

When a line of railroad is wholly within one state, no question of interstate commerce can arise upon a statute regulating the operation of such road. Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, 1896 U.S. LEXIS 3390 (1896), overruled, Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, 1954 U.S. LEXIS 2094, 53 Ohio Op. 326, 38 A.L.R.2d 1180 (1954), overruled, United States v. Polouizzi, 687 F. Supp. 2d 133, 2010 U.S. Dist. LEXIS 4912 (E.D.N.Y. 2010), overruled in concurring opinion at Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753, 2010 U.S. LEXIS 766 (U.S. 2010), overruled, Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 54810 (E.D. Ark. May 19, 2011), overruled, Moody v. Arc of Howard County, Inc., — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 73540 (D. Md. July 7, 2011), overruled, Lynch v. State, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 155012 (N.D. Ala. Nov. 7, 2011), overruled in concurring opinion at Morrow v. Balaski, 719 F.3d 160, — FED App. (6th Cir.) —, 2013 U.S. App. LEXIS 11246 (3d Cir. Pa. 2013).

26. — —Education.

A college dormitory was used in an activity affecting interstate commerce for purposes of a federal arson statute. United States v. Sherlin, 67 F.3d 1208, 1995 FED App. 310P (6th Cir.), 1995 U.S. App. LEXIS 29047 (6th Cir. 1995), cert. denied, 516 U.S. 1082, 116 S. Ct. 795, 133 L. Ed. 2d 744, 1996 U.S. LEXIS 628 (1996), cert. denied, 517 U.S. 1158, 116 S. Ct. 1548, 134 L. Ed. 2d 650, 1996 U.S. LEXIS 2721 (1996).

27. — —Food and Drugs.

Congress, in the exercise of its authority over interstate commerce, could lawfully amend the Food and Drugs Act of June 30, 1906, ch. 3915 (Mason's U.S. Code, title 21, ch. 1; U.S.C., title 21, ch. 1; F.C.A., title 21, ch. 1) [repealed], so as to make contraband of interstate commerce as misbranded drugs which bear or contain, in or upon packages or labels, false and fraudulent statements as to curative or therapeutic effect. Seven Cases of Eckman's Alterative v. United States, 239 U.S. 510, 36 S. Ct. 190, 60 L. Ed. 411, 1916 U.S. LEXIS 1925 (1916).

28. — —Gas and Oil.

The transportation of oil in pipe lines between points in different states is interstate commerce, although the oil transported may belong to the owners of the pipe lines. Pipe Line Cases, 234 U.S. 548, 34 S. Ct. 956, 58 L. Ed. 1459, 1914 U.S. LEXIS 1107 (1914).

29. — —Insurance.

Insurance is not commerce, and a foreign life insurance company may be taxed upon the excess of premiums received over losses and expenses incurred within the state during the previous year, although such premiums are transmitted to the home office and contracts, loans, and advances are consummated there. New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495, 34 S. Ct. 167, 58 L. Ed. 332, 1913 U.S. LEXIS 2527 (1913).

State statutory requirement of payment of annual fees by corporations does not violate the commerce clause in its application to insurance companies, insurance not being commerce and not being subject to interstate commerce regulations. Camden Fire Ins. Ass'n v. Haston, 153 Tenn. 675, 284 S.W. 905, 1925 Tenn. LEXIS 53 (1925).

The mere fact that fire services in general affect insurance rates did not establish that fire station was used in an activity substantially affecting interstate commerce. United States v. Laton, 180 F. Supp. 2d 948, 2002 U.S. Dist. LEXIS 199 (W.D. Tenn. 2002), rev'd, 352 F.3d 286, 2003 FED App. 437P, 2003 U.S. App. LEXIS 24770 (6th Cir. Tenn. 2003).

Medical association's action against insurers for violations of the Tennessee Consumer Protection Act could not escape the mandatory arbitration provisions contained in the contracts between its member providers and the insurers where the association had no contractual relationship with the insurer; thus, arbitration was the proper forum for its claim pursuant to the Tennessee Arbitration Act, T.C.A. § 29-5-302, the Federal Arbitration Act, 9 U.S.C. § 2, and U.S. Const. art. I, § 8, cl. 3. Tenn. Med. Ass'n v. Bluecross Blueshield of Tenn., Inc., 229 S.W.3d 304, 2007 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 9, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 600 (Tenn. June 25, 2007).

30. — —Intoxicating Liquor.

The Webb-Kenyon Act is valid exercise by congress of its power to regulate commerce. Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311, 37 S. Ct. 180, 61 L. Ed. 326, 1917 U.S. LEXIS 2189 (1917); Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 39 S. Ct. 93, 63 L. Ed. 239, 1919 U.S. LEXIS 2308, 2 A.L.R. 1589 (1919).

Where the transportation of intoxicating liquors through dry counties in this state is a mere incident of interstate commerce, such transportation may not be prohibited. McCanless v. Graham, 177 Tenn. 57, 146 S.W.2d 137, 1940 Tenn. LEXIS 11 (1941).

31. — —Negotiable Paper.

Massachusetts trust carrying on business of dealing in negotiable paper in Michigan held not engaged in interstate commerce as affecting necessity of obtaining certificate of authority to do business as a foreign corporation. Hemphill v. Orloff, 277 U.S. 537, 48 S. Ct. 577, 72 L. Ed. 978, 1928 U.S. LEXIS 696 (1928).

32. — —Power.

The transmission of electric current from one state to another is interstate commerce. Public Utils. Comm'n v. Attleboro Steam & Elec. Co., 269 U.S. 546, 46 S. Ct. 103, 70 L. Ed. 404, 1925 U.S. LEXIS 85 (1925).

33. — —Radio.

The prohibition of obscene language in radio broadcasts is proper exercise of the power of congress to regulate interstate commerce. Duncan v. United States, 48 F.2d 128, 1931 U.S. App. LEXIS 4188 (9th Cir.), cert. denied, 283 U.S. 863, 51 S. Ct. 656, 75 L. Ed. 1468, 1931 U.S. LEXIS 439 (1931).

34. — —Securities.

Statutes imposing taxes on the sale or transfer of corporate stock held by nonresidents is not a tax on interstate commerce. New York ex rel. Hatch v. Reardon, 204 U.S. 152, 27 S. Ct. 188, 51 L. Ed. 415, 1907 U.S. LEXIS 1536, 9 Ann. Cas. 736 (1907).

A dealer in securities is not engaged in interstate commerce because a part of the securities represents the purchase price of goods sold by dealers in Tennessee to consumers outside of the state. General Sec. Co. v. Williams, 161 Tenn. 50, 29 S.W.2d 662, 1929 Tenn. LEXIS 34 (1930).

35. —Power of Congress over Commerce.

The government of the United States has jurisdiction over every foot of soil within its territory, and acts directly upon each citizen. While it is a government of enumerated powers, it has full attributes of sovereignty within the limits of those powers, among which are the power over the transmission of the mails. In the exercise of those powers, the United States may remove everything put upon highways, natural or artificial, to obstruct the passage of interstate commerce, or the carrying of the mails. It is competent for the courts of the United States to prevent by injunction the interference with the carrying of the mails or the transportation of interstate commerce, and to punish persons for contempt who violate the terms of such injunction. In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092, 1895 U.S. LEXIS 2279 (1895).

The test of congress' power to regulate commerce is not merely the matter regulated, but whether the regulation is directly one of interstate commerce or as embraced within the grant conferred on congress to use all lawful means necessary and appropriate to the execution of the power to regulate commerce. Employers' Liab. Cases, 207 U.S. 463, 28 S. Ct. 141, 52 L. Ed. 297, 1908 U.S. LEXIS 1412 (1908), superseded by statute as stated in, Rogers v. Conrail, 948 F.2d 858, — ## FED App. ## (6th Cir.) —, 1991 U.S. App. LEXIS 26398 (2d Cir. N.Y. 1991).

The power to regulate commerce between the states is an exclusive power vested in congress and the states may not regulate such commerce in any manner. Manning v. Feidelson, 175 Tenn. 576, 136 S.W.2d 510, 1939 Tenn. LEXIS 77 (1939).

The fact that congress has authority to regulate interstate transportation and that its authority is exclusive is settled and conceded. McCanless v. Southeastern Greyhound Lines, 178 Tenn. 614, 162 S.W.2d 370, 1941 Tenn. LEXIS 90 (1941), appeal dismissed, 317 U.S. 595, 63 S. Ct. 80, 87 L. Ed. 487, 1942 U.S. LEXIS 163 (1942).

36. — —Antitrust Laws.

Congress under U.S. Const. art. 1, § 8, cl. 3 has power to declare void and prohibit the performance of contracts in restraint of interstate commerce. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S. Ct. 96, 44 L. Ed. 136, 1899 U.S. LEXIS 1559 (1899).

Congress has power to enact laws to prevent combinations, trusts, and conspiracies which affect interstate commerce. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S. Ct. 96, 44 L. Ed. 136, 1899 U.S. LEXIS 1559 (1899).

37. — —Crime.

Commerce among the states consists of intercourse and traffic between their citizens and includes the transportation of persons as well as property; and the act of congress, known as the White Slave Act (Mason's U.S. Code, title 18, §§ 397-404; U.S.C., title 18, §§ 397-404, F.C.A., title 18, §§ 397-404) [repealed], prohibiting the transportation of females from one state to another for immoral purposes is constitutional. Hoke v. United States, 227 U.S. 308, 33 S. Ct. 281, 57 L. Ed. 523, 1913 U.S. LEXIS 2301 (1913); Bennett v. United States, 227 U.S. 333, 33 S. Ct. 288, 57 L. Ed. 531, 1913 U.S. LEXIS 2303 (1913); Harris v. United States, 227 U.S. 340, 33 S. Ct. 289, 57 L. Ed. 534, 1913 U.S. LEXIS 2304 (1913); Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442, 1917 U.S. LEXIS 2169, 1917F L.R.A. 502, 1917B Ann. Cas. 1168 (1917).

The federal carjacking statute, 18 U.S.C. § 2119, is not unconstitutional under the commerce clause, since, so long as the activity regulated has an effect on interstate commerce, it makes no difference that the transported item is “at rest” and is no longer “in” interstate commerce. United States v. Johnson, 22 F.3d 106, 1994 FED App. 128P, 1994 U.S. App. LEXIS 8370 (6th Cir. 1994).

Section 18 U.S.C. § 922(g)(1) represents a valid exercise of legislative power under the commerce clause. United States v. Turner, 77 F.3d 887, 1996 FED App. 73P, 1996 U.S. App. LEXIS 3719 (6th Cir. 1996).

The federal statute, 18 U.S.C. § 922(g), prohibiting possession of a firearm by a convicted felon, is not unconstitutional under the commerce clause and the fact that the defendant possessed a gun that had previously moved in interstate commerce provided sufficient nexus between his conduct and interstate commerce to allow regulation of his conduct pursuant to the commerce clause. United States v. Chesney, 86 F.3d 564, 1996 FED App. 166P, 1996 U.S. App. LEXIS 14508 (6th Cir. 1996), cert. denied, Chesney v. United States, 520 U.S. 1282, 117 S. Ct. 2470, 138 L. Ed. 2d 225, 1997 U.S. LEXIS 3849 (1997); United States v. Murphy, 107 F.3d 1199, 1997 FED App. 84P, 1997 U.S. App. LEXIS 3738 (6th Cir. 1997); United States v. Murphy, 107 F.3d 1199, 1997 FED App. 84P, 1997 U.S. App. LEXIS 3738 (6th Cir. 1997).

Federal criminal statute prohibiting money laundering fell within congress's power to regulate interstate commerce since use of federally insured banks and/or the transport of moneys across state borders to facilitate the money laundering created a sufficient nexus to interstate commerce. United States v. Owens, 159 F.3d 221, 1998 FED App. 314P, 1998 U.S. App. LEXIS 26592 (6th Cir. 1998), rehearing denied, — F.3d —, — FED App. (6th Cir.) —, 1998 U.S. App. LEXIS 34151 (6th Cir. Dec. 23, 1998), cert. denied, 528 U.S. 817, 120 S. Ct. 56, 145 L. Ed. 2d 49, 1999 U.S. LEXIS 4999 (1999).

The Hobbs Act's (18 U.S.C. § 1951) broad jurisdictional language manifests a purpose to use all the constitutional power congress has to punish interference with interstate commerce by extortion, robbery or physical violence; the Act outlaws such interference in any way or degree. United States v. Mills, 204 F.3d 669, 2000 FED App. 72P, 2000 U.S. App. LEXIS 2859 (6th Cir. 2000), cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533, 2000 U.S. LEXIS 8131 (2000).

A “de minimis” effect on interstate commerce is sufficient to satisfy the jurisdictional predicate of the federal Hobbs Act (18 U.S.C. § 1951), and even a beneficial effect on interstate commerce can satisfy the jurisdictional predicate. United States v. Mills, 204 F.3d 669, 2000 FED App. 72P, 2000 U.S. App. LEXIS 2859 (6th Cir. 2000), cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533, 2000 U.S. LEXIS 8131 (2000).

Where one or more of the conspirators involved in the solicitation of bribes for appointments to deputy sheriff positions had actual knowledge that the bribe money would be obtained through loans made in interstate commerce, defendant's conduct gave rise to federal jurisdiction under the Hobbs Act (18 U.S.C. § 1951). United States v. Mills, 204 F.3d 669, 2000 FED App. 72P, 2000 U.S. App. LEXIS 2859 (6th Cir. 2000), cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533, 2000 U.S. LEXIS 8131 (2000).

The Violence Against Women Act, 42 U.S.C. § 13981, is not unconstitutional under the commerce clause. Seaton v. Seaton, 971 F. Supp. 1188, 1997 U.S. Dist. LEXIS 12566 (E.D. Tenn. 1997).

38. — — —Gambling.

Federal law (18 U.S.C. § 1955) criminalizing gambling operations of a certain size was a proper exercise of congressional power under the United States constitution. United States v. Wall, 92 F.3d 1444, 1996 FED App. 266P, 1996 U.S. App. LEXIS 20401 (6th Cir. Tenn. 1996), cert. denied, 519 U.S. 1059, 117 S. Ct. 690, 136 L. Ed. 2d 613, 1997 U.S. LEXIS 113 (1997).

39. — — —Organized Crime Control Act.

Because a church's activities, including its radio broadcasts, picnics, and gospel programs, were non-commercial in nature, the church's buildings were used for non-commercial purposes; therefore, the court dismissed defendant's indictment for arson involving the church's buildings under the Organized Crime Control Act. United States v. Rayborn, 138 F. Supp. 2d 1029, 2001 U.S. Dist. LEXIS 5101 (W.D. Tenn. 2001).

40. — —Foreign Commerce.

Vessels navigating the high seas between ports of the same state are subject to control by congress. Lord v. Steamship Co., 102 U.S. 541, 102 U.S. 541, 26 L. Ed. 224, 1880 U.S. LEXIS 2058 (Tenn. 1881).

The power of congress to regulate foreign commerce is unlimited except as to the restrictions imposed by the constitution, and no one has the right to import any article into the United States except upon the terms and conditions imposed by acts of congress. Buttfield v. Stranahan, 192 U.S. 470, 24 S. Ct. 349, 48 L. Ed. 525, 1904 U.S. LEXIS 965 (1904).

41. — —Intrastate Commerce.

An activity which takes place wholly intrastate can be regulated by Congress because of the impact those activities have in other states. Marshall v. Davis, 526 F. Supp. 325, 1981 U.S. Dist. LEXIS 15737, 82 Labor Relations Fed. & State (P-H) P14699.195 (M.D. Tenn. 1981).

Before local activities can be regulated under the authority of the commerce clause, there must be a determination that those activities might have a substantial and harmful effect upon interstate commerce. Marshall v. Davis, 526 F. Supp. 325, 1981 U.S. Dist. LEXIS 15737, 82 Labor Relations Fed. & State (P-H) P14699.195 (M.D. Tenn. 1981).

As part of its constitutional authority to regulate interstate commerce, congress may regulate intrastate activities that have a substantial relation to interstate commerce. Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 1999 Tenn. LEXIS 582 (Tenn. 1999), cert. denied, 530 U.S. 1238, 120 S. Ct. 2679, 147 L. Ed. 2d 289, 2000 U.S. LEXIS 4143 (2000).

42. — —Master and Servant.

Congress has power to regulate the relations of master and servant when such regulations are confined solely to interstate commerce, but such power does not extend to cases when the parties are not engaged in the business of interstate commerce. Employers' Liab. Cases, 207 U.S. 463, 28 S. Ct. 141, 52 L. Ed. 297, 1908 U.S. LEXIS 1412 (1908), superseded by statute as stated in, Rogers v. Conrail, 948 F.2d 858, — ## FED App. ## (6th Cir.) —, 1991 U.S. App. LEXIS 26398 (2d Cir. N.Y. 1991).

Congress' authority for legislation such as the Federal Mine Safety and Health Act is derived from the commerce clause which grants congress the power to “regulate commerce with foreign nations, and among the several states.” Marshall v. Kilgore, 478 F. Supp. 4, 1979 U.S. Dist. LEXIS 11014 (E.D. Tenn. 1979).

City's operation of transit authority constituted integral and traditional function of participating local political subdivisions and was not immune from application of overtime pay provisions of Fair Labor Standards Act. Dove v. Chattanooga Area Regional Transp. Auth., 701 F.2d 50, 1983 U.S. App. LEXIS 29943 (6th Cir. 1983).

The extension of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., to cover state and local governments is a valid exercise of congress' powers under the commerce clause and is not precluded by the U.S. Const. amend. 10. Whitfield v. Knoxville, 567 F. Supp. 1344, 1983 U.S. Dist. LEXIS 15432 (E.D. Tenn. 1983), aff'd, 756 F.2d 455, 1985 U.S. App. LEXIS 29662 (6th Cir. Tenn. 1985).

43. — — —Employers' Liability Act.

Employers' Liability Act, 35 Stat. 65, since it is limited by express terms to common carriers while engaged in interstate or foreign commerce and to injuries received by their employees while “employed by such carriers in such commerce,” is a constitutional and valid regulation of such commerce. Cain v. Southern Ry., 199 F. 211, 1911 U.S. App. LEXIS 5465 (C.C.E.D. Tenn. 1911).

The federal statute regulating the liability of carriers engaged in interstate commerce for injuries to employees is applicable until the act of transportation is fully completed, and such transportation is not completed when a railroad train reaches its terminal when anything further is to be done in reference to the moving of the cars containing the commerce that is carried. St. Louis, S.F. & Tex. Ry. v. Seale, 229 U.S. 156, 33 S. Ct. 651, 57 L. Ed. 1129, 1913 U.S. LEXIS 2430 (1913).

Congress by passage of the Employers' Liability Act intended to confine its action to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce. Illinois Cent. R.R. v. Behrens, 233 U.S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, 1914 U.S. LEXIS 1227 (1914).

Congress by passage of the Employers' Liability Act of 1908 took possession of the field of employer's liability to employees in interstate transportation by rail, and all state laws upon the subject are superseded. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, 1914 U.S. LEXIS 1229 (1914), superseded by statute as stated in, Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, — ## FED App. ## (6th Cir.) —, 1995 U.S. App. LEXIS 16020 (3d Cir. N.J. 1995).

The Employers' Liability Act speaks of interstate commerce in a practical sense suited to the occasion, and the true test of employment in such commerce in the sense intended is, whether the employee at the time of the injury engaged in interstate transportation or in work so closely related as to be practically a part of it. Chicago, B. & Q.R.R. v. Harrington, 241 U.S. 177, 36 S. Ct. 517, 60 L. Ed. 941, 1916 U.S. LEXIS 1791 (1916).

44. — — —Labor Relations.

Hours of labor of employees engaged in interstate commerce may be regulated by congress. Baltimore & O. R. Co. v. Interstate Commerce Com., 221 U.S. 612, 31 S. Ct. 621, 55 L. Ed. 878, 1911 U.S. LEXIS 1760 (1911).

Only congress can regulate the hours of labor of employees of interstate railway carriers in connection with the movement of trains, such as block system, telephone and telegraph operators, and signal men, although engaged in both interstate and intrastate commerce, this power being given by the Hours of Service Act of March 4, 1907 (Mason's U.S. Code, title 45, §§ 61-66; U.S.C., title 45, §§ 61-66; F.C.A., title 45, §§ 61-66). Erie R.R. v. New York, 233 U.S. 671, 34 S. Ct. 756, 58 L. Ed. 1149, 1914 U.S. LEXIS 1175 (1914).

Where facts of case reasonably bring controversy within sections of National Labor Relations Act prohibiting those practices, and where the conduct, if not prohibited by the federal act, may be reasonably deemed to come within the protection afforded by the act, the state court must decline jurisdiction. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S. Ct. 480, 99 L. Ed. 546, 1955 U.S. LEXIS 1455 (1955).

45. — —Navigation.

Tennessee Valley Act (16 U.S.C. § 831) which authorized construction of dams in the interest of navigation and flood control was constitutional though power generated at government dams was sold to various municipalities, since sale of power was incidental to general purpose to wit, navigation and flood control. Tennessee Elec. Power Co. v. TVA, 21 F. Supp. 947, 1938 U.S. Dist. LEXIS 2480 (E.D. Tenn. 1938), aff'd, Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), dismissed, Hicks v. Mutual L. Ins. Co., 59 S. Ct. 54, 305 U.S. 564, 83 L. Ed. 355, 1938 U.S. LEXIS 666 (1938), dismissed, Tennessee Electric Power Co. v. Tennessee Valley Authority, 59 S. Ct. 54, 305 U.S. 663, 83 L. Ed. 430, 1938 U.S. LEXIS 857 (1938).

46. — — —Bridges.

Congress alone has the right to authorize the erection of bridges over streams used for interstate commerce. Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 15 L. Ed. 435, 1855 U.S. LEXIS 714 (1855); Clinton Bridge, 77 U.S. 454, 19 L. Ed. 969, 1870 U.S. LEXIS 1139 (1870); Bridge Co. v. United States, 105 U.S. 470, 26 L. Ed. 1143, 1881 U.S. LEXIS 2151, 5 Ohio F. Dec. 67 (1881); Miller v. Mayor of New York, 109 U.S. 385, 3 S. Ct. 228, 27 L. Ed. 971, 1883 U.S. LEXIS 980 (1883).

Under the power given to congress to regulate commerce among the states, such body may create a corporation to build a bridge across navigable water between two states. Luxton v. North River Bridge Co., 153 U.S. 525, 14 S. Ct. 891, 38 L. Ed. 808, 1894 U.S. LEXIS 2201 (1894).

Where a bridge erected over a stream constituting the boundary line between two states is used for the purpose of interstate commerce, congress alone has the power to fix the rates of toll that may be charged against those engaged in such commerce. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 14 S. Ct. 1087, 38 L. Ed. 962, 1894 U.S. LEXIS 2229 (1894).

Under its power to control commerce and navigation, congress may require changes to be made, in the interest of navigation, in an existing bridge to the construction of which congress gave assent. Louisville Bridge Co. v. United States, 242 U.S. 409, 37 S. Ct. 158, 61 L. Ed. 395, 1917 U.S. LEXIS 2203 (1917).

47. — — —Ferries.

The power of congress to regulate interstate commerce extends to the regulation of the transportation of persons and property from one state to another by ferries. Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders, 234 U.S. 317, 34 S. Ct. 821, 58 L. Ed. 1330, 1914 U.S. LEXIS 1152 (1914).

48. — —Railroads.

Congress may authorize the construction of railroads through states and territories. California v. Central Pac. R.R., 127 U.S. 1, 8 S. Ct. 1073, 32 L. Ed. 150, 1888 U.S. LEXIS 1960 (1888).

49. — — —Hepburn Act.

The object of the Hepburn Act was to require the initial carrier receiving freight for transportation in interstate commerce to obligate itself to carry to the point of destination, using the lines of connecting carriers as its agencies, but it was not intended to make foreign corporations through connecting carriers liable to suit in a district where they were not carrying on business. St. Louis S. Ry. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, 1913 U.S. LEXIS 2292 (1913).

Forbidding a railway company to transport in interstate commerce from market to mine an article purchased by it for use in its private business of mining, conducted under charter authority as is done by the Hepburn Act of June 29, 1906 (Mason's U.S. Code, title 49; U.S.C., title 49; F.C.A., title 49), is a valid exercise of the power of congress to regulate commerce. Delaware, L. & W.R.R. v. United States, 231 U.S. 363, 34 S. Ct. 65, 58 L. Ed. 269, 1913 U.S. LEXIS 2574 (1913).

Transportation of hay for animals used in operating its coal mines by a railway engaged in interstate commerce is a violation of the commodity clause of the Hepburn Act of June 29, 1906 (Mason's U. S. Code, title 49; U.S.C., title 49; F.C.A., title 49). Delaware, L. & W.R.R. v. United States, 231 U.S. 363, 34 S. Ct. 65, 58 L. Ed. 269, 1913 U.S. LEXIS 2574 (1913).

50. — — —Rebates.

Congress may so regulate interstate commerce as to prevent favoritism and to secure equal rights to all who are engaged in interstate trade, and may provide for the recovery of penalties from corporations because of granting rebates from published rates. New York Cent. & H.R.R.R. v. United States, 212 U.S. 481, 29 S. Ct. 304, 53 L. Ed. 613, 1909 U.S. LEXIS 1832 (1909).

Contracts made by common carriers to grant free passes in settlement of claims before the passage of the Interstate Commerce Act cannot be enforced since the passage of such act. Louisville & N.R.R. v. Mottley, 219 U.S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 1911 U.S. LEXIS 1648 (1911).

51. — — —Suits.

Service on commercial agent of railroad did not violate commerce clause of United States constitution where railroad operated local line in the state. Ketch v. Atlantic C. L. R. Co., 51 F. Supp. 243, 1943 U.S. Dist. LEXIS 2376 (D. Tenn. 1943).

52. —Power of State Over Commerce.

The only way in which commerce between the states can be legitimately affected by state laws is by the exercise of police power when the state has jurisdiction of persons and property, or by doing things which incidentally affect commerce such as establishing highways. But state cannot tax one in state for a temporary purpose nor tax foreign goods before it becomes part of common mass of property in state, nor discriminate adversely to persons or property of other states nor directly affect interstate commerce. Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694, 1887 U.S. LEXIS 1993 (1887).

Laws of states enacted in the proper exercise of police powers will not be held unconstitutional because they may indirectly or remotely affect interstate commerce. New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 29 S. Ct. 10, 53 L. Ed. 75, 1908 U.S. LEXIS 1525 (1908).

Laws of a state, enacted in the exercise of its police powers, will not be held unconstitutional because they may indirectly or remotely affect interstate commerce. Bowen v. Hannah, 167 Tenn. 451, 71 S.W.2d 672, 1933 Tenn. LEXIS 61 (1934).

It is only when congress has legislated touching a given subject with reference to interstate commerce, that the state's power to legislate touching the same subject is superseded. McCanless v. Southeastern Greyhound Lines, 178 Tenn. 614, 162 S.W.2d 370, 1941 Tenn. LEXIS 90 (1941), appeal dismissed, 317 U.S. 595, 63 S. Ct. 80, 87 L. Ed. 487, 1942 U.S. LEXIS 163 (1942).

Sections 59-1701 — 59-1721 (now §§ 55-17-101 — 55-17-120) regulating purchase and sale of motor vehicles was not unconstitutional as a burden on interstate commerce where it applied to all alike so long as they were doing business in the state. Ford Motor Co. v. Pace, 206 Tenn. 559, 335 S.W.2d 360, 1960 Tenn. LEXIS 394, 1960 Tenn. LEXIS 395 (1960), appeal dismissed, 364 U.S. 444, 81 S. Ct. 235, 5 L. Ed. 2d 192, 1960 U.S. LEXIS 144 (1960), rehearing denied, 364 U.S. 939, 81 S. Ct. 377, 5 L. Ed. 2d 371 (1961), dismissed, View Crest Garden Apartments, Inc. v. United States, 5 L. Ed. 2d 195, 81 S. Ct. 235, 364 U.S. 902, 1960 U.S. LEXIS 166 (1960).

Exhibits were evidence that the Tennessee legislature was concerned about dangers of optometrists practicing in, or in conjunction with, any commercial entity, regardless of in-state or out-of-state ownership, which is a legitimate concern; also, plaintiffs failed to establish how the activities summarized in the exhibits impacted the legislative process so as to produce a discriminatory statute. Lenscrafters, Inc. v. Robinson, 248 F. Supp. 2d 705, 2003 U.S. Dist. LEXIS 3538 (M.D. Tenn. 2003).

Law prohibiting plaintiff retail optical stores from leasing space and equipment inside their stores to licensed optometrists was not adopted for discriminatory purposes and any burdens imposed did not clearly exceed the statute's putative benefits; thus, the statute was not an unconstitutional infringement on interstate commerce. LensCrafters, Inc. v. Wadley, 248 F. Supp. 2d 705, 2003 U.S. Dist. LEXIS 3613 (M.D. Tenn. 2003).

53. — —In General.

If a state statute provides that where goods are shipped into the state from another state and are to be paid for on delivery, the place of payment or delivery shall be deemed the place of sale, such statute is void as an attempt to regulate interstate commerce. Adams Express Co. v. Kentucky, 206 U.S. 129, 27 S. Ct. 606, 51 L. Ed. 987, 1907 U.S. LEXIS 1147 (1907).

A state is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to supply local demands of that state. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S. Ct. 1, 73 L. Ed. 147, 1928 U.S. LEXIS 1 (1928).

Section 69-303 (now § 47-25-203) which prohibits sales of goods at less than cost and defines cost as purchase price or replacement costs, within the state, whichever is lower, merely specifies a means of computing cost, and is not a regulation of interstate commerce prohibited by U.S. Const. art. 1, § 8. Rust v. Griggs, 172 Tenn. 565, 113 S.W.2d 733, 1937 Tenn. LEXIS 98 (1938).

In light of broad substantial economic effect test, Tennessee's property tax classification system under which railroads are classified as a public utility “affects” interstate commerce. Tennessee v. Louisville & N.R.R., 478 F. Supp. 199, 1979 U.S. Dist. LEXIS 10396 (M.D. Tenn. 1979), aff'd without opinion, 652 F.2d 59, 1981 U.S. App. LEXIS 19040 (6th Cir. 1981).

54. — —Judicial Restrictions on Rights.

A state court that has subject matter jurisdiction over a proceeding may not deny a party to the proceeding its federal rights, including rights under the commerce clause of the United States constitution. Bloomingdale's by Mail, Ltd. v. Huddleston, 848 S.W.2d 52, 1992 Tenn. LEXIS 703 (Tenn. 1992), rehearing denied, Bloomingdale's by Mail v. Huddleston, — S.W.2d —, 1993 Tenn. LEXIS 52 (Tenn. Feb. 22, 1993), cert. denied, Huddleston v. Bloomingdale's by Mail, 509 U.S. 907, 113 S. Ct. 3002, 125 L. Ed. 2d 694, 1993 U.S. LEXIS 4298 (1993).

55. — —Economic protectionism.

In an action by an unsuccessful bidder arising out of the award of contract by a county for non-residential non-hazardous waste collection, the county's consideration of local landfill use as a single bid evaluation criterion did not constitute a protectionist restriction in violation of the commerce clause. Barker Bros. Waste v. Dyer County Legislative Body, 923 F. Supp. 1042, 1996 U.S. Dist. LEXIS 8602 (W.D. Tenn. 1996).

In an action by an unsuccessful bidder arising out of the award by a county of contract for non-residential non-hazardous waste collection, even if the county discriminated against interstate commerce, it did so solely as a market participant and was therefore immune from claims brought under the dormant commerce clause. Barker Bros. Waste v. Dyer County Legislative Body, 923 F. Supp. 1042, 1996 U.S. Dist. LEXIS 8602 (W.D. Tenn. 1996).

56. — —Antitrust Laws.

The Tennessee Antitrust Law of 1903 was not in violation of U.S. Const. art. 1, § 8, cl. 3, in a case where the defendant was ousted from the state for conspiring with agents to induce merchants to breach contracts for oil to be shipped from Pennsylvania, since the connection with interstate commerce was indirect and remote. The interference was fortuitous. Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

57. — —Animals and Game.

States cannot during a stated time in each year prevent all cattle from being taken from one state through another state. Railroad Co. v. Husen, 95 U.S. 465, 24 L. Ed. 527, 1877 U.S. LEXIS 2195 (1877).

A state statute making the owner of “Texas cattle” that are allowed to run at large liable for damages caused by the spread of “Texas fever” is not in conflict with the commerce clause of the constitution of the United States.Kimmish v. Ball, 129 U.S. 217, 9 S. Ct. 277, 32 L. Ed. 695, 1889 U.S. LEXIS 1681 (1889).

States may enact statutes prohibiting the bringing into the states from other states animals that are infected with contagious diseases. Rasmussen v. Idaho, 181 U.S. 198, 21 S. Ct. 594, 45 L. Ed. 820, 1901 U.S. LEXIS 1358 (1901).

The transportation of animals from one state to another is a branch of interstate commerce, and when such transportation is taken under national supervision and regulations are adopted to exclude diseased animals from a state, the statutes of the state on the same subject are superseded. Reid v. Colorado, 187 U.S. 137, 23 S. Ct. 92, 47 L. Ed. 108, 1902 U.S. LEXIS 801 (1902).

Conflicting state and federal regulations, Migratory Bird Law. Exclusive jurisdiction not assumed by provisions of Act of March 4, 1913, ch. 145. Carey v. South Dakota, 250 U.S. 118, 39 S. Ct. 403, 63 L. Ed. 886, 1919 U.S. LEXIS 1724 (1919). For present law, see U.S.C., title 16, §§ 701-711, F.C.A., title 16, §§ 701-711.

A state statute prohibiting importation of cattle without official certificate that the herds from which the cattle came are free from Bang's disease is a police measure, and, since the federal government has not taken possession of the field of this matter under the commerce clause, the state is free to act. Mintz v. Baldwin, 289 U.S. 346, 53 S. Ct. 611, 77 L. Ed. 1245, 1933 U.S. LEXIS 182 (1933).

58. — —Censorship and Advertising.

The censorship by a state board of censors of motion picture films coming from another state is not a burden upon interstate commerce. Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 35 S. Ct. 387, 59 L. Ed. 552, 1915 U.S. LEXIS 1755 (1915), overruled, Joseph Burstyn, Inc. v. Wilson, 72 S. Ct. 777, 343 U.S. 495, 96 L. Ed. 1098, 1952 U.S. LEXIS 2796 (1952), overruled in part, Joseph Burstyn, Inc. v. Wilson, 72 S. Ct. 777, 343 U.S. 495, 96 L. Ed. 1098, 1952 U.S. LEXIS 2796 (1952).

59. — —Cigarettes and Tobacco.

A state act absolutely prohibiting all commerce in cigarettes is an invalid interference with interstate commerce insofar as it prevents the importation and sale by the importer of cigarettes in original packages, it not being a quarantine or inspection statute nor based on condition of the cigarette. Sawrie v. Tennessee, 82 F. 615, 1897 U.S. App. LEXIS 2783 (M.D. Tenn. 1897).

Cigarettes, being “wholly noxious and deleterious,” were held not to be legitimate objects of commerce in Austin v. State, 101 Tenn. 563, 48 S.W. 305, 1898 Tenn. LEXIS 104, 50 L.R.A. 478 (1898), but was disapproved on this point, Austin v. Tennessee, 179 U.S. 343, 21 S. Ct. 132, 45 L. Ed. 224, 1900 U.S. LEXIS 1877 (1900). Blaufield v. State, 103 Tenn. 593, 53 S.W. 1090, 1899 Tenn. LEXIS 139 (1899) See also.

A state may regulate or prohibit the sale of cigarettes after they have been taken from the original package or have left the hands of the importer. Austin v. Tennessee, 179 U.S. 343, 21 S. Ct. 132, 45 L. Ed. 224, 1900 U.S. LEXIS 1877 (1900).

60. — —Common Carriers.

Enforcement of injunction against collective bargaining contract rider which would exclude nonunion employees from employment in Tennessee on shipments out of Kentucky passing through Tennessee did not interfere with the free flow of commerce between various states. Martin v. Dealers Transport Co., 48 Tenn. App. 1, 342 S.W.2d 245, 1960 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1960).

Foreign railroads which maintained fixed office in Shelby County, Tennessee, with employees in the county, including agent having authority: (1) To execute binding contracts to receive and carry freight and passengers; and (2) To issue exchange bills of lading, were amenable to service of process in that county under Tenn. R. Civ. P. 4.04(4), even though they had no track facilities in the state; and suit by a nonresident as result of service so obtained did not amount to burden on interstate commerce or violation of due process. Atchison, T. & S. F. R. Co. v. Ortiz, 50 Tenn. App. 317, 361 S.W.2d 113, 1962 Tenn. App. LEXIS 152 (Tenn. Ct. App. 1962).

61. — — —Express Companies.

Express companies cannot be controlled by state laws as to the delivery of packages which constitute interstate commerce, since the taking effect of the act of congress making the Railroad Rate Law apply to such companies. State ex rel. Indiana R.R. Comm'n v. Adams Express Co., 171 Ind. 138, 85 N.E. 337, 1908 Ind. LEXIS 106 (1908).

A municipality cannot exact a bond of an express company engaged in interstate business for each and every vehicle license for safe and prompt delivery of all baggage entrusted to the owner or driver, as congress has occupied this entire field of regulation by the Act of June 29, 1906 (Mason's U.S.C., title 49; U.S., title 49; F.C.A., title 49). Barrett v. City of New York, 232 U.S. 14, 34 S. Ct. 203, 58 L. Ed. 483, 1914 U.S. LEXIS 1456 (1914).

62. — — —Railroads.

The power, given congress over interstate commerce, does not prevent states from regulating the operation of railroad trains engaged in such commerce when such regulations do not directly interfere with the operations of interstate commerce. Southern Ry. v. King, 217 U.S. 524, 30 S. Ct. 594, 54 L. Ed. 868, 1910 U.S. LEXIS 1980 (1910).

63. — — — —Equipment.

States may regulate the character of headlights to be used on railroad locomotives that are employed in interstate commerce. Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280, 34 S. Ct. 829, 58 L. Ed. 1312, 1914 U.S. LEXIS 1149 (1914); Vandalia R.R. v. Public Serv. Comm'n, 242 U.S. 255, 37 S. Ct. 93, 61 L. Ed. 276, 1916 U.S. LEXIS 1516 (1916).

A state cannot legislate in regard to safety appliances of cars moving in interstate commerce so as to require railway companies to place secure grab irons or handholds on every car. Southern Ry. v. Railroad Comm'n, 236 U.S. 439, 35 S. Ct. 304, 59 L. Ed. 661, 1915 U.S. LEXIS 1773 (1915).

A state does not impose an unlawful burden upon interstate commerce by forbidding the removal of offices, roundhouses, and shops from a location designated in consideration of receiving aid. International & G.N. Ry. v. Anderson County, 246 U.S. 424, 38 S. Ct. 370, 62 L. Ed. 807, 1918 U.S. LEXIS 1562 (1918).

64. — — — —Crossings and Switching.

Congress has not taken over the whole subject of terminals, team tracks, switching tracks, and siding of interstate railways so as to invalidate all state regulations relative to the interchange of traffic. Grand Trunk Ry. v. Michigan R.R. Comm'n, 231 U.S. 457, 34 S. Ct. 152, 58 L. Ed. 310, 1913 U.S. LEXIS 2541 (1913).

State's police power extends to matter of safe crossing of railroad tracks by highway. Welch v. Norfolk & W.R.R., 104 W. Va. 660, 140 S.E. 839, 1927 W. Va. LEXIS 254 (W. Va. Dec. 13, 1927).

An ordinance of the city of Memphis, requiring railroads to provide flagmen at street crossings, was a reasonable police regulation, and not a burden on interstate commerce, even if more expensive than the maintenance of an electric signal. Nashville, C. & S. L. R. Co. v. White, 158 Tenn. 407, 15 S.W.2d 1, 1927 Tenn. LEXIS 40 (1928), aff'd, Nashville, C. & S. L. Railway v. White, 278 U.S. 456, 49 S. Ct. 189, 73 L. Ed. 452, 1929 U.S. LEXIS 346 (1929).

Municipal ordinance requiring railroad to construct, operate and maintain automatic signals and crossing gates at certain crossings did not, per se, violate due process and commerce clauses of United States constitution. Southern R. Co. v. Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 1968 Tenn. LEXIS 504 (1968), cert. denied, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970).

65. — — — —Employees.

Congress has power, under the commerce clause of the constitution, to regulate the liability of interstate carriers to their employees for injuries; but until congress acts, the subject is within the police power of the states, but an act of congress on the subject is paramount to state laws. Michigan Cent. R.R. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417, 1913 U.S. LEXIS 2276 (1913), superseded by statute as stated in, Figueroa v. Sec'y of HHS, 715 F.3d 1314, — FED App. (6th Cir.) —, 2013 U.S. App. LEXIS 8839 (Fed. Cir. 2013).

The entire subject of the liability of interstate railway carriers for the death or injury of their employees while employed by them in interstate commerce is so completely covered by the provisions of the Federal Employers' Liability Act as to preclude an award under the New York Workmen's Compensation Act, although the federal act only applies to injuries resulting from negligence. New York Cent. R.R. v. Winfield, 244 U.S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, 1917 U.S. LEXIS 1620 (1917).

66. — — — —Cars.

State statute requiring the furnishing of a stated number of cars by a railroad company on a specified day, when a burden on interstate commerce. Houston & Tex. Cent. R.R. v. Mayes, 201 U.S. 321, 26 S. Ct. 491, 50 L. Ed. 772, 1906 U.S. LEXIS 1792 (1906).

Railroad companies engaged in the carriage of interstate commerce cannot be required by states to pay heavy penalties because of a failure to furnish cars to shippers. St. Louis S. Ry. v. Arkansas, 217 U.S. 136, 30 S. Ct. 476, 54 L. Ed. 698, 1910 U.S. LEXIS 1949, 29 L.R.A. (n.s.) 802 (1910).

The rule of a state railroad commission exacting a per diem penalty from a carrier for delay in delivery of cars to the consignee at the termination of interstate transportation amounts to an unreasonable burden on interstate commerce where the requirements to deliver cars within twenty-four hours after arrival dating from seven a. m. the day following the arrival is absolute, and makes no allowance whatever for a justifiable and unavoidable cause for failure to deliver. Yazoo & Miss. V.R.R. v. Greenwood Grocery Co., 227 U.S. 1, 33 S. Ct. 213, 57 L. Ed. 389, 1913 U.S. LEXIS 2271 (1913).

Requiring an interstate railway to furnish cars to shippers within a reasonable time after demand does not hinder interstate commerce. Illinois Cent. R.R. v. Mulberry Hill Coal Co., 238 U.S. 275, 35 S. Ct. 760, 59 L. Ed. 1306, 1915 U.S. LEXIS 1620 (1915).

67. — — — —Freight Service.

The statute of a state making a common carrier liable for the transportation of goods that are received by such carrier to be transported to a point beyond the terminus of the line of such carrier, even though such point is outside the state in which such goods are received, is not invalid, on ground it interferes with or regulates interstate commerce. Dimmitt v. Kansas City, St. J. & C.B.R.R., 103 Mo. 433, 15 S.W. 761, 1890 Mo. LEXIS 52 (1890); Nines v. St. Louis, I.M. & S. Ry., 107 Mo. 475, 18 S.W. 26, 1891 Mo. LEXIS 311 (1891).

Freight trains carrying interstate commerce may be prohibited by states from running on Sunday. Hennington v. Georgia, 163 U.S. 299, 16 S. Ct. 1086, 41 L. Ed. 166, 1896 U.S. LEXIS 2267 (1896).

Packages of intoxicating liquors delivered to express companies to be carried from one state into another and delivered to the consignee on the payment of a specified sum cannot be confiscated under the liquor laws of the state where delivery is to be made before delivery to the consignee. American Express Co. v. Iowa, 196 U.S. 133, 25 S. Ct. 182, 49 L. Ed. 417, 1905 U.S. LEXIS 885 (1905); Adams Express Co. v. Iowa, 196 U.S. 147, 25 S. Ct. 185, 49 L. Ed. 424, 1905 U.S. LEXIS 886 (1905).

States by statute cannot require carriers, engaged in carrying freight from one state into another and delivering the same to connecting carriers, to furnish to the shipper evidence to show what carrier is liable for the loss of or damage to the goods shipped. Central of G. R. Co. v. Murphey, 196 U.S. 194, 25 S. Ct. 218, 49 L. Ed. 444, 1905 U.S. LEXIS 893, 2 Ann. Cas. 514 (1905).

An order of a state railroad commission requiring a railway company to accept, without unloading and reloading into its own cars, coal in carload lots when tendered in the cars of other railroads which were brought into the state does not interfere with interstate commerce where there is such a termination of the interstate shipment that the further transportation is purely intrastate. Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334, 34 S. Ct. 592, 58 L. Ed. 988, 1914 U.S. LEXIS 1252 (1914).

An order of a railroad commission interferes with interstate commerce where it requires one railroad on demand of a shipper to do switching of freight intended for a competing carrier, where it is to take an empty car from its competitor, place the car on its own switch to be loaded and returned to the competitor. Illinois Cent. R.R. v. Fuentes, 236 U.S. 157, 35 S. Ct. 275, 59 L. Ed. 517, 1915 U.S. LEXIS 1791 (1915).

68. — — — —Passenger Service.

States cannot regulate the carriage of passengers from one state to another. Hall v. De Cuir, 95 U.S. 485, 24 L. Ed. 547, 1877 U.S. LEXIS 2197 (1877).

A state cannot abolish all remedies for wrongful exclusion of persons from railroad cars, in interstate commerce, for such would be a direct regulation of interstate commerce. Brown v. Memphis & C. R. Co., 5 F. 499, 1880 U.S. App. LEXIS 2696 (C.C.D. Tenn. 1880).

A statute of Illinois requiring certain railroad trains carrying passengers from other states through such state and into other states to deviate from the regular route of such trains to enable the same to run to and from a county seat held to be unconstitutional as being a hindrance to interstate commerce. Illinois Cent. R.R. v. Illinois, 163 U.S. 142, 16 S. Ct. 1096, 41 L. Ed. 107, 1896 U.S. LEXIS 2254 (1896).

States may enact statutes regulating the heating of passenger cars that are employed in interstate commerce. New York, N.H. & H.R.R. v. New York, 165 U.S. 628, 17 S. Ct. 418, 41 L. Ed. 853, 1897 U.S. LEXIS 2002 (1897).

States may enact statutes requiring railroad companies engaged in interstate commerce to stop passenger trains at all county seats. Gladson v. Minnesota, 166 U.S. 427, 17 S. Ct. 627, 41 L. Ed. 1064, 1897 U.S. LEXIS 2034 (1897).

Passenger trains engaged in interstate commerce, power of states to require stops at designated stations. Lake Shore & Mich. S. Ry. v. Ohio, 173 U.S. 285, 19 S. Ct. 465, 43 L. Ed. 702, 1899 U.S. LEXIS 1438 (1899).

Statutes requiring railroad and interurban companies to provide separate coaches for white and colored passengers when carried within the state is not a regulation of interstate commerce. C & O Ry. v. Kentucky, 179 U.S. 388, 21 S. Ct. 101, 45 L. Ed. 244, 1900 U.S. LEXIS 1878 (1900); Cincinnati, C. & E. Ry. v. Kentucky, 252 U.S. 408, 40 S. Ct. 381, 64 L. Ed. 637, 1920 U.S. LEXIS 1518 (1920).

There may be instances when the compelling by state laws of the stopping of fast passenger trains, engaged in interstate business, at designated stations will be an interference with interstate commerce. Atlantic Coast Line R.R. v. Wharton, 207 U.S. 328, 28 S. Ct. 121, 52 L. Ed. 230, 1907 U.S. LEXIS 1227 (1907).

Street cars engaged in interstate commerce, power of states to regulate the number of passengers on cars and the heating of the cars. South Covington & C. St. Ry. v. City of Covington, 235 U.S. 537, 35 S. Ct. 158, 59 L. Ed. 350, 1915 U.S. LEXIS 1840 (1915).

A requirement that certain villages must have not less than two passenger trains per day without regard to the adequacy of the existing passenger service is an unlawful burden on interstate commerce as applied to a railway running only interstate trains. Chicago, B. & Q.R.R. v. Railroad Comm'n, 237 U.S. 220, 35 S. Ct. 560, 59 L. Ed. 926, 1915 U.S. LEXIS 1331 (1915).

69. — — — —Rates and Fares.

The statute of a state requiring carriers engaged in interstate commerce to fix the rates of carriage, and to print and post up a list thereof, is constitutional. Railroad Co. v. Fuller, 84 U.S. 560, 21 L. Ed. 710, 1873 U.S. LEXIS 1397 (1873).

A Tennessee act authorizing a railroad commission to regulate rates on intrastate traffic and on interstate traffic for the distance carried within the state violates U.S. Const. art. 1, § 8, as it is a direct burden on interstate commerce, power to control which was given to congress. Louisville & N.R.R. v. Railroad Comm'n, 19 F. 679, 1884 U.S. App. LEXIS 1895 (M.D. Tenn. 1884).

Where a railroad company made a contract with the city that it would not discriminate in its rates, against the city or its people, the city could not be enjoined from declaring the contract forfeited for interstate discrimination, even though such forfeiture would affect interstate commerce. The action of the city was an attempt merely to enforce a valid contract. Iron Mountain R. Co. v. Memphis, 96 F. 113, 1899 U.S. App. LEXIS 2508 (6th Cir. 1899).

The inclusion of railroad fares in the Act of February 4, 1887, ch. 104, § 1 (Mason's U.S. Code, title 49; U.S.C., title 49; F.C.A., title 49), as one of the subjects regulated, is one of the extensions of federal authority and invalidates state regulations over rates on navigable rivers forming the boundary line between the two states. New York Cent. & H.R.R.R. v. Board of Chosen Freeholders, 227 U.S. 248, 33 S. Ct. 269, 57 L. Ed. 499, 1913 U.S. LEXIS 2295 (1913).

Congressional inaction on the subject leaves each state free to establish the maximum of intrastate rates for interstate carriers which are reasonable in themselves, although the state's requirements may necessarily disturb the existing regulation between interstate and intrastate rates as to places within the zones of competition crossed by the state boundary line. Missouri Rate Cases, 230 U.S. 474, 33 S. Ct. 975, 57 L. Ed. 1571, 1913 U.S. LEXIS 2687 (1913); Oregon R.R. & Nav. Co. v. Campbell, 230 U.S. 525, 33 S. Ct. 1026, 57 L. Ed. 1604, 1913 U.S. LEXIS 2691 (1913); Southern Pac. Co. v. Campbell, 230 U.S. 537, 33 S. Ct. 1027, 57 L. Ed. 1610, 1913 U.S. LEXIS 2692 (1913); Allen v. St. Louis, I.M. & S. Ry., 230 U.S. 553, 33 S. Ct. 1030, 57 L. Ed. 1625, 1913 U.S. LEXIS 2693 (1913).

State courts have no jurisdiction to investigate overcharges made by a carrier engaged in interstate commerce. St. Louis S. Ry. v. J.S. Patterson Constr. Co., 181 Ind. 304, 104 N.E. 512, 1914 Ind. LEXIS 33 (Ind. Mar. 12, 1914).

A state may not compel a carrier to establish a rate upon a particular commodity which is unreasonable in order to build up a local enterprise. Northern Pac. Ry. v. North Dakota ex rel. McCue, 236 U.S. 585, 35 S. Ct. 429, 59 L. Ed. 735, 1915 U.S. LEXIS 1728 (1915), superseded by statute as stated in, King v. United States, 101 F. Supp. 941, 1951 U.S. Dist. LEXIS 1926 (D. Fla. 1951).

70. — — — —Suits.

An action in one state against a railroad which has no lines in said state for injuries or death in another state, even though plaintiff has in good faith acquired residence where suit is brought, may constitute under certain facts an undue burden on interstate commerce. Michigan Cent. R.R. v. Mix, 278 U.S. 492, 49 S. Ct. 207, 73 L. Ed. 470, 1929 U.S. LEXIS 19 (1929); Denver & R.G.W.R.R. v. Terte, 284 U.S. 284, 52 S. Ct. 152, 76 L. Ed. 295, 1932 U.S. LEXIS 873 (1932).

A suit by a resident of this state in the courts of another state for injuries occurring in this state, against a railroad whose lines do not reach into the other state, which would force the railroad to take witnesses and employees to the other state to the detriment of its service, is a burden upon interstate commerce and the prosecution of the suit may be enjoined. Louisville & N.R.R. v. Ragan, 172 Tenn. 593, 113 S.W.2d 743, 1937 Tenn. LEXIS 102 (1937).

Where defendant foreign corporation did a local business by jointly operating a railroad in Tennessee, it was held that service on a commercial agent in this state would not be an invasion of the commerce clause of U.S. Const. art. 1, § 8. Ketch v. Atlantic C. L. R. Co., 51 F. Supp. 243, 1943 U.S. Dist. LEXIS 2376 (D. Tenn. 1943).

71. — — —Motor Carriers.

Congress not having legislated upon the subject, a state may regulate motor vehicles, and require that vehicles moving in interstate commerce must secure local identification tags to be furnished free. Hendrick v. Maryland, 235 U.S. 610, 35 S. Ct. 140, 59 L. Ed. 385, 1915 U.S. LEXIS 1848 (1915); Kane v. New Jersey, 242 U.S. 160, 37 S. Ct. 30, 61 L. Ed. 222, 1916 U.S. LEXIS 1544 (1916).

Section 65-1516 (now § 65-15-114) providing for licensing and regulation of motor carriers engaged in transportation within the state does not violate U.S. Const. art. 1, § 8, since statute enacted under the police power of the state is not invalid merely because it incidentally affected interstate commerce. Bowen v. Hannah, 167 Tenn. 451, 71 S.W.2d 672, 1933 Tenn. LEXIS 61 (1934).

72. — — —Telegraph and Telephone.

The fact that a telegraph company is engaged in interstate commerce does not prevent it from being liable for negligence in failing to deliver a message. Western Union Tel. Co. v. Mellon, 100 Tenn. 429, 45 S.W. 443, 1897 Tenn. LEXIS 133 (1897).

Telegraph companies, power of states to regulate the transmission and delivery of messages that are sent from one state into another. Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 31 S. Ct. 59, 54 L. Ed. 1088, 1910 U.S. LEXIS 2036 (1910); Western Union Tel. Co. v. Crovo, 220 U.S. 364, 31 S. Ct. 399, 55 L. Ed. 498, 1911 U.S. LEXIS 1684 (1911); Western Union Tel. Co. v. Boegli, 251 U.S. 315, 40 S. Ct. 167, 64 L. Ed. 281, 1920 U.S. LEXIS 1708 (1920).

Congress has so far occupied the entire field of the interstate business of telegraph companies by enacting the provisions of the Act of June 18, 1910, respecting interstate telegraph rates, as to exclude state action invalidating a contract limiting the liability of a telegraph company for error in sending an unrepeated interstate message to the refunding of the price paid for the transmission of the message. Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27, 40 S. Ct. 69, 64 L. Ed. 118, 1919 U.S. LEXIS 1846 (1919); Western Union Tel. Co. v. Boegli, 251 U.S. 315, 40 S. Ct. 167, 64 L. Ed. 281, 1920 U.S. LEXIS 1708 (1920).

The Act of Congress of 1910, amending the 1887 Act (Mason's U.S. Code, title 49; U.S.C., title 49; F.C.A., title 49), regulating commerce, so completely took possession of the field that a state thereafter could not penalize the negligent failure to deliver promptly an interstate telegram, and the Indiana statute was superseded. Western Union Tel. Co. v. Boegli, 251 U.S. 315, 40 S. Ct. 167, 64 L. Ed. 281, 1920 U.S. LEXIS 1708 (1920).

73. — —Food and Drugs.

The act of congress requiring persons, engaged in the manufacture or sale of oleomargarine, to pay a tax to the United States does not authorize the sale of such articles in states contrary to the statutes thereof. Such act was not intended to be, and is not, a regulation of commerce among the states. Plumley v. Massachusetts, 155 U.S. 461, 15 S. Ct. 154, 39 L. Ed. 223, 1894 U.S. LEXIS 2292 (1894).

The statute of a state prohibiting the sale of adulterated drugs and foods is not in conflict with the commerce clause of the federal Constitution, but is a proper exercise of the police power. Crossman v. Lurman, 192 U.S. 189, 24 S. Ct. 234, 48 L. Ed. 401, 1904 U.S. LEXIS 1020 (1904).

The Food and Drugs Act does not prevent a state board of health under state authority from making a regulation requiring a label disclosing the composition of table syrup offered for sale in the original package. Corn Prods. Ref. Co. v. Eddy, 249 U.S. 427, 39 S. Ct. 325, 63 L. Ed. 689, 1919 U.S. LEXIS 2099 (1919).

74. — —Gambling.

While the state cannot prohibit the shipment into the state by a foreign corporation of newspapers in original packages containing betting information, it may prohibit the distribution of such papers in the state after the breaking of such packages. Parkes v. Bartlett, 210 N.W. 492, 1926 Mich. LEXIS 866, 47 A.L.R. 1128 (1926).

75. — —Highways.

A Texas act limiting the size and weight of trucks on state highways is not violative of the commerce clause, as the states have police power to protect and preserve their highways and the resulting burden, if any, on interstate commerce is indirect. Sproles v. Binford, 286 U.S. 374, 52 S. Ct. 581, 76 L. Ed. 1167, 1932 U.S. LEXIS 610 (1932).

The state has the police power to regulate reasonably interstate commerce on the highways in the interest of safety; and the finding of a state commission that to grant applicant's application for a certificate for a certain route would create excessive hazard to the public justified their refusal. Bradley v. Public Utils. Comm'n, 289 U.S. 92, 53 S. Ct. 577, 77 L. Ed. 1053, 1933 U.S. LEXIS 169, 85 A.L.R. 1131 (1933).

In the absence of congressional legislation, the state may regulate the use of its highways by imposing graduated license taxes on motor vehicles. Sanger v. Lukens, 24 F.2d 226, 1927 U.S. Dist. LEXIS 1711 (D. Idaho 1927), rev'd, 26 F.2d 855, 1928 U.S. App. LEXIS 3790 (9th Cir. 1928).

The state has broad police powers of supervision and control to promote safety and convenience in the use and conservation of its highways, and these powers extend to the use of its highways by vehicles engaged in interstate commerce in absence of congressional conflicting action. McCanless v. Southeastern Greyhound Lines, 178 Tenn. 614, 162 S.W.2d 370, 1941 Tenn. LEXIS 90 (1941), appeal dismissed, 317 U.S. 595, 63 S. Ct. 80, 87 L. Ed. 487, 1942 U.S. LEXIS 163 (1942).

An ordinance by the city of Chattanooga imposing a license fee on passenger automobiles using the streets of the city was not unconstitutional under U.S. Const. art. 1, § 8 as amounting to a burden on interstate commerce with reference to citizens of Georgia affected thereby. DeLay v. Chattanooga, 180 Tenn. 316, 174 S.W.2d 929, 1943 Tenn. LEXIS 17 (1943).

76. — —Inspection.

A state inspection fee in excess of the cost of inspection is void. Standard Oil Co. v. Graves, 249 U.S. 389, 39 S. Ct. 320, 63 L. Ed. 662, 1919 U.S. LEXIS 2093 (1919); Askren v. Continental Oil Co., 252 U.S. 444, 40 S. Ct. 355, 64 L. Ed. 654, 1920 U.S. LEXIS 1522 (1920). See also Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U.S. 345, 18 S. Ct. 862, 43 L. Ed. 191, 1898 U.S. LEXIS 1607 (1898); Pabst Brewing Co. v. Crenshaw, 198 U.S. 17, 25 S. Ct. 552, 49 L. Ed. 925, 1905 U.S. LEXIS 1152 (1905); D.E. Foote & Co. v. Stanley, 232 U.S. 494, 34 S. Ct. 377, 58 L. Ed. 698, 1914 U.S. LEXIS 1381 (1914).

77. — — —Animals.

States may enact laws for the inspection of animals coming from other states with the purpose of excluding those which are diseased and admitting those which are healthy. Asbell v. Kansas, 209 U.S. 251, 28 S. Ct. 485, 52 L. Ed. 778, 1908 U.S. LEXIS 1731, 14 Ann. Cas. 1101 (1908).

78. — — —Food.

Burns' Indiana Stat. 1933, § 16-1001 et seq., regulating the inspection and sale of commercial foodstuffs, are not invalid because of interfering with interstate commerce. Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715, 56 L. Ed. 1182, 1912 U.S. LEXIS 2101 (1912).

79. — — —Gas and Oil.

The collection, under a Tennessee statute, of an inspection fee on oil manufactured in Pennsylvania and Ohio and brought into the state to be stored there for later shipment to outside states, was not in violation of U.S. Const. art. 1, § 8, cl. 3. General Oil Co. v. Crain, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

Where a municipal corporation purchased fuel oil outside of the state, after the oil came to rest in the state it ceased to be in interstate commerce, and the state could impose an inspection fee substantially in excess of the cost of inspection for the purpose of providing general revenue. State ex rel. Fort v. Jackson, 172 Tenn. 119, 110 S.W.2d 323, 1937 Tenn. LEXIS 60 (1937).

The state may in exercise of the police power inspect and collect fees upon inflammable products within the state as a means of safety even though such products are moving in interstate commerce, but where the act is strictly a police regulation the inspection fees cannot exceed the reasonable cost of inspection. State v. Reed Oil Co., 176 Tenn. 10, 137 S.W.2d 292, 1925 Tenn. LEXIS 119 (1925).

Where Acts 1917, ch. 33 provided that inspection fees were to be imposed on petroleum products before such products were “sold or offered for sale or use in this state” such statute did not impose a burden on interstate commerce even though the fees exceeded the costs of inspection. State v. Reed Oil Co., 176 Tenn. 10, 137 S.W.2d 292, 1925 Tenn. LEXIS 119 (1925).

An examination and test of petroleum products before unloading is not an undue burden on interstate commerce, if a commensurate charge only is made for that service. State v. Nashville, C. & St. L. Ry., 176 Tenn. 24, 137 S.W.2d 297, 1939 Tenn. LEXIS 95 (1939).

80. — — —Motor Carriers.

Where the “inspection” referred to in Acts 1933, ch. 119, § 14 related to the examination of motor carriers for the purpose of appraising weights and dimensions, and consequent adaptability to given highways and conditions of traffic, use and congestion, affecting public safety and conservation of highways owned by the state and to the inspection, control and supervision by state policing authorities incident to speed and other traffic features in restricted areas and under various conditions there was no encroachment on the field of control of the interstate commerce commission with reference to interstate carriers. McCanless v. Southeastern Greyhound Lines, 178 Tenn. 614, 162 S.W.2d 370, 1941 Tenn. LEXIS 90 (1941), appeal dismissed, 317 U.S. 595, 63 S. Ct. 80, 87 L. Ed. 487, 1942 U.S. LEXIS 163 (1942).

Annual inspection fee of $2.50 per seat as to motor buses was not so manifestly unjust as to shift to the state the burden of justifying it and of showing that it was not a revenue measure in the guise of an inspection fee so as to constitute a burden on interstate commerce with reference to interstate carriers. McCanless v. Southeastern Greyhound Lines, 178 Tenn. 614, 162 S.W.2d 370, 1941 Tenn. LEXIS 90 (1941), appeal dismissed, 317 U.S. 595, 63 S. Ct. 80, 87 L. Ed. 487, 1942 U.S. LEXIS 163 (1942).

81. — — —Vessels.

States cannot authorize the inspection of sea going vessels and their cargoes. Foster v. Master & Wardens, 94 U.S. 246, 24 L. Ed. 122, 1876 U.S. LEXIS 1855 (1876).

The statutes of a state providing for the appointment of gaugers of coal and coke boats are not regulations of commerce, nor in conflict with the power of congress over the subject, but police regulations within the power of a state to enact, although commerce may be, in some degree, affected thereby; nor does such a statute lay an impost of duty on imports from other states. Pittsburg & S. Coal Co. v. Louisiana, 156 U.S. 590, 15 S. Ct. 459, 39 L. Ed. 544, 1895 U.S. LEXIS 2165 (1895).

82. — —Intoxicating Liquor.

A state statute prohibiting sale of intoxicating liquor cannot apply to a sale by the acceptance of a mail order from a person in another state, the acceptance being manifested by delivering the liquor to a common carrier for continuous transportation to the buyer, since such a sale is under the protection of the interstate commerce clause of the constitution. State v. J.W. Kelly & Co., 123 Tenn. 556, 133 S.W. 1011, 1910 Tenn. LEXIS 24, 36 L.R.A. (n.s.) 171 (1910).

A state, after passage of the Webb-Kenyon Act of 1913, had the police power to prohibit sales of intoxicating liquors within four miles of any schoolhouse, even though the sales were exclusively in interstate commerce. Laughter & Fisher v. McLain, 229 F. 280, 1916 U.S. Dist. LEXIS 1036 (W.D. Tenn. 1916).

By virtue of the U.S. Const. amend. 21, a state is totally unconfined by traditional commerce clause limitations when it restricts, regulates or prevents importation of intoxicants destined for use, distribution or consumption within its borders. Memphis Pub. Co. v. Leech, 539 F. Supp. 405, 1982 U.S. Dist. LEXIS 12558 (W.D. Tenn. 1982).

83. — —Gas and Oil.

The federal Natural Gas Act, 15 U.S.C. § 717 et seq., was not designed to remove from the state's substantial regulation of the natural gas industry, but was designed to provide federal regulation in certain areas which were not subject to state jurisdiction under the interstate commerce clause. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

Where a corporation is federally regulated as to volumes and priorities, it would be improper for the local power commission to undertake such regulation, but where the same corporation is not regulated as to prices, the local power commission has jurisdiction to regulate these prices directly. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

Where the parent corporation was partially regulated by the federal power commission, its direct sales to its wholly domestic subsidiary, although part of interstate commerce, were essentially local in nature, and the Tennessee public service commission was not prevented from taking these sales into account in determining the proper rate base and rate structure of the subsidiary. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

84. — —Landfills.

Review pursuant to the local approval law (T.C.A. § 68-211-701 et seq.) of an application for permission to create a private landfill was not unconstitutionally discriminatory against out-of-state interests in violation of the commerce clause of the United States constitution. Tucker v. Humphreys County, 944 S.W.2d 613, 1996 Tenn. App. LEXIS 734 (Tenn. Ct. App. 1996), overruled, Tenn. Waste Movers, Inc. v. Loudon County, 160 S.W.3d 517, 2005 Tenn. LEXIS 223 (Tenn. 2005), overruled, Brundage v. Cumberland County, 357 S.W.3d 361, 2011 Tenn. LEXIS 1153 (Tenn. Dec. 19, 2011).

Local governing authority's waste flow control ordinances requiring that all residential waste be disposed of at a facility owned by the authority discriminated against interstate commerce. Waste Mgmt. v. Metropolitan Gov't, 130 F.3d 731, 1997 U.S. App. LEXIS 30306, 1997 FED App. 330P (6th Cir. 1997), cert. denied, Metropolitan Gov't of Nashville v. Waste Mgmt., 523 U.S. 1094, 118 S. Ct. 1560, 140 L. Ed. 2d 792, 1998 U.S. LEXIS 2830 (1998), overruled, Gray's Disposal Co. v. Metro. Gov't of Nashville, 318 S.W.3d 342, 2010 Tenn. LEXIS 717 (Tenn. 2010).

Local governing authority's waste disposal fee provisions which treated interests of the authority and non-authority interests differently discriminated against interstate commerce. Waste Mgmt. v. Metropolitan Gov't, 130 F.3d 731, 1997 U.S. App. LEXIS 30306, 1997 FED App. 330P (6th Cir. 1997), cert. denied, Metropolitan Gov't of Nashville v. Waste Mgmt., 523 U.S. 1094, 118 S. Ct. 1560, 140 L. Ed. 2d 792, 1998 U.S. LEXIS 2830 (1998), overruled, Gray's Disposal Co. v. Metro. Gov't of Nashville, 318 S.W.3d 342, 2010 Tenn. LEXIS 717 (Tenn. 2010).

85. — —Navigation.

States cannot grant to any person the exclusive right to navigate the navigable waters within their boundaries. Gibbons v. Ogden, 22 U.S. 1, 6 L. Ed. 23, 1824 U.S. LEXIS 370 (1824).

States may adopt rules regulating pilots when such regulations do not conflict with acts of congress. Cooley v. Board of Wardens, 53 U.S. 299, 13 L. Ed. 996, 1851 U.S. LEXIS 658 (1851), overruled in concurring opinion at United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 167 L. Ed. 2d 655, 127 S. Ct. 1786, 550 U.S. 330, 2007 U.S. LEXIS 4746 (2007); Pacific Mail S.S. Co. v. Joliffe, 69 U.S. 450, 17 L. Ed. 805, 1864 U.S. LEXIS 442 (1865); Wilson v. McNamee, 102 U.S. 572, 26 L. Ed. 234, 1880 U.S. LEXIS 2063 (Tenn. 1881).

All vessels or other instruments engaged in commerce between the states, no matter how limited, are subject to control by congress. The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999, 1870 U.S. LEXIS 1152 (1870).

The commerce clause affords ample protection to the right of every citizen to the free navigation of the Mississippi River, whether the current be in one state or another, without fear of hindrance or burdens imposed by such states. State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437, 1907 Tenn. LEXIS 4 (Tenn. Sep. 1907), rev'd, Cissna v. Tennessee, 246 U.S. 289, 38 S. Ct. 306, 62 L. Ed. 720, 1918 U.S. LEXIS 1547 (1918).

86. — — —Bridges.

The police power of a state cannot justify a direct interference with interstate commerce, and a state court cannot order the removal of bridges over a navigable stream which form necessary parts of lines of interstate commerce. Kansas City S. Ry. v. Kaw Valley Drainage Dist., 233 U.S. 75, 34 S. Ct. 564, 58 L. Ed. 857, 1914 U.S. LEXIS 1272 (1914).

States have plenary power to construct bridges over navigable streams or to agree or to refuse to agree with adjoining states for such construction over streams forming boundary lines before and until congressional action. Klein v. City of Louisville, 224 Ky. 624, 6 S.W.2d 1104, 1928 Ky. LEXIS 663 (1928).

87. — — —Ferries.

A state may fix reasonable rates for ferriage from its shores to the shores of another state over a boundary stream until congress undertakes to regulate such rates. Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders, 234 U.S. 317, 34 S. Ct. 821, 58 L. Ed. 1330, 1914 U.S. LEXIS 1152 (1914).

88. — —Securities.

A state under the police power can require a license of any dealer who engages in sale of securities within the state, since once the securities have reached the hands of dealers within the state they have passed out of interstate commerce. Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S. Ct. 217, 61 L. Ed. 480, 1917 U.S. LEXIS 2155 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 37 S. Ct. 224, 61 L. Ed. 493, 1917 U.S. LEXIS 2156 (1917); Merrick v. N.W. Halsey & Co., 242 U.S. 568, 37 S. Ct. 227, 61 L. Ed. 498, 1917 U.S. LEXIS 2157 (1917).

89. — —Vessels.

Liens on vessels engaged in interstate commerce may be enforced under state laws to enforce payment of claims for damage done by such vessels. Martin v. West, 222 U.S. 191, 32 S. Ct. 42, 56 L. Ed. 159, 1911 U.S. LEXIS 1773 (1911), superseded by statute as stated in, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, 1995 U.S. LEXIS 1622, 63 U.S.L.W. 4154, 8 Fla. L. Weekly Fed. S 578, 95 Cal. Daily Op. Service 1289, 95 D.A.R. 2296, 1995 A.M.C. 913 (1995).

State statute regulating retaking of vessel by conditional vendor held not invalid. Stewart & Co. v. Rivara, 274 U.S. 614, 47 S. Ct. 718, 71 L. Ed. 1234, 1927 U.S. LEXIS 625 (1927).

90. — —Workers' Compensation.

Under the Ohio Workmen's Compensation Act, a steamship engaged in interstate commerce can be made subject thereto without hindering interstate commerce. Valley S.S. Co. v. Wattawa, 244 U.S. 202, 37 S. Ct. 523, 61 L. Ed. 1084, 1917 U.S. LEXIS 1627 (1917).

Massachusetts Workmen's Compensation Act does not impose direct burden on interstate commerce and, if properly construed, it applies in case of interstate railroad only to employees while engaged exclusively in intrastate commerce. Boston & Me. R.R. v. Armburg, 285 U.S. 234, 52 S. Ct. 336, 76 L. Ed. 729, 1932 U.S. LEXIS 436 (1932).

91. —Taxation of Commerce.

A state may tax for ad valorem without offending the commerce clause of the United States constitution. E & L Transp. Co. v. Ellington, 212 Tenn. 671, 371 S.W.2d 456, 1963 Tenn. LEXIS 458 (1963).

A four-part test provides that a state tax on an out-of-state seller will be sustained so long as the tax: (1) Is applied to an activity with a substantial nexus to the state; (2) Is fairly apportioned; (3) Does not discriminate against interstate commerce; and (4) Is fairly related to the services provided by the taxing state. J.C. Penney Nat. Bank v. Johnson, 19 S.W.3d 831, 1999 Tenn. App. LEXIS 826 (Tenn. Ct. App. 1999), cert. denied, Johnson v. J. C. Penney Nat'l Bank, 531 U.S. 927, 121 S. Ct. 305, 148 L. Ed. 2d 245, 2000 U.S. LEXIS 6652 (2000).

Where bank did not have a physical presence in Tennessee through its affiliates and the most important function allowing bank to maintain its credit card business took place through the U.S. mail, there was not a sufficient substantial nexus necessary to sustain the tax under the commerce clause. J.C. Penney Nat. Bank v. Johnson, 19 S.W.3d 831, 1999 Tenn. App. LEXIS 826 (Tenn. Ct. App. 1999), cert. denied, Johnson v. J. C. Penney Nat'l Bank, 531 U.S. 927, 121 S. Ct. 305, 148 L. Ed. 2d 245, 2000 U.S. LEXIS 6652 (2000).

92. — —Principles in General.

The clear intent of the statutory scheme is to tax to the fullest extent permitted by the commerce clause. Woods v. M. J. Kelley Co., 592 S.W.2d 567, 1980 Tenn. LEXIS 394 (Tenn. 1980), cert. denied, 447 U.S. 905, 100 S. Ct. 2987, 64 L. Ed. 2d 854, 1980 U.S. LEXIS 2340 (1980).

Businesses engaged in interstate commerce may be taxed by the states if: (1) The taxed activity has a substantial nexus to the taxing state; (2) The tax is fairly apportioned to the taxing state; (3) The tax does not discriminate against interstate commerce; and (4) The tax is fairly related to services provided within the state. South Cent. Bell Tel. Co. v. Celauro, 735 S.W.2d 228, 1987 Tenn. LEXIS 1069 (Tenn. 1987).

The commerce clause gives exclusive power to congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the states. J.C. Penney Co. v. Olsen, 796 S.W.2d 943, 1990 Tenn. LEXIS 316 (Tenn. 1990), rehearing denied, J. C. Penney Co. v. Olsen, — S.W.2d —, 1990 Tenn. LEXIS 385 (Tenn. Oct. 22, 1990).

93. — — —Tax on Sales in Commerce.

Contracts for the sale and future delivery of property which do not require interstate shipments are not subjects of interstate commerce, and states may tax persons engaged in making such contracts. Ware & Leland v. Mobile County, 209 U.S. 405, 28 S. Ct. 526, 52 L. Ed. 855, 1908 U.S. LEXIS 1714 (1908).

A state tax imposed upon the business of selling goods in foreign commerce, the amount of which is measured by the gross receipts, is unconstitutional. Crew Levick Co. v. Pennsylvania, 245 U.S. 292, 38 S. Ct. 126, 62 L. Ed. 295, 1917 U.S. LEXIS 1737 (1917).

Where the interstate shipment of goods is not contemplated or required by the parties, a contract for sale within a state between persons residing in that state, for delivery of goods therein is not interstate commerce merely because the seller fulfills the contract by shipment to the purchaser of goods from a point without the state. State v. Southern Oil Service, Inc., 174 Tenn. 232, 124 S.W.2d 704, 1938 Tenn. LEXIS 84 (1939).

No one incurs tax liability with respect to goods by virtue of their transportation through the state in the channels of interstate commerce, but any stoppage or bringing to rest of these goods within the state for sale at retail, use, consumption, distribution or storage for subsequent use does subject such goods to the taxing power of the state. Texas Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137, 1969 Tenn. LEXIS 486 (1969).

Interstate commerce had not yet begun when catalogs were delivered to or picked up by a company acting as an agent for distribution on behalf of the buyer, and a sale or transfer of possession as defined in § 67-6-102 was therefore completed at this point within the state such that, under these facts, a taxable event occurred and no exemption existed under the commerce clause of the United States constitution or § 67-6-313, even though the parties contemplated immediate exportation. Board of Publication of Methodist Church, Inc. v. Woods, 609 S.W.2d 501, 1980 Tenn. LEXIS 513 (Tenn. 1980).

The imposition of the use tax on preprinted advertising supplements printed out-of-state and inserted in a Tennessee newspaper did not unconstitutionally interfere with interstate commerce. Sears, Roebuck & Co. v. Woods, 708 S.W.2d 374, 1986 Tenn. LEXIS 827 (Tenn. 1986).

It makes little difference for commerce clause purposes whether catalogs printed out-of-state and shipped in-state “came to rest” in the mailboxes of its customers or whether they were still considered in the stream of interstate commerce; the distribution of the catalogs constitutes a taxable use. J.C. Penney Co. v. Olsen, 796 S.W.2d 943, 1990 Tenn. LEXIS 316 (Tenn. 1990), rehearing denied, J. C. Penney Co. v. Olsen, — S.W.2d —, 1990 Tenn. LEXIS 385 (Tenn. Oct. 22, 1990).

Sales tax on leasing of cargo containers did not violate the commerce clause where the containers had a substantial nexus with Tennessee: they were present within the state at the time of transfer of possession to each lessee; the containers were in the custody of corporation's employees and agents in Tennessee; the tax was fairly apportioned, since it was levied only on the proceeds of leases pursuant to which the lessee took delivery in Tennessee; the tax did not discriminate, since it fell even-handedly on all leased personal property in the state; and the tax was fairly related to the services provided by Tennessee, services that included police and fire protection. Itel Containers Int'l Corp. v. Cardwell, 814 S.W.2d 29, 1991 Tenn. LEXIS 169 (Tenn. 1991), aff'd, Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 113 S. Ct. 1095, 122 L. Ed. 2d 421, 1993 U.S. LEXIS 1778 (1993).

Tennessee's sales tax, as applied to proceeds earned from leasing cargo containers used in international trade, did not violate the commerce, import-export or supremacy clauses of the federal constitution. Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 113 S. Ct. 1095, 122 L. Ed. 2d 421, 1993 U.S. LEXIS 1778 (1993).

94. — — —Taxation Services.

The imposition of sales taxes on services performed within the state on products later placed into interstate commerce is not a violation of the commerce clause in U.S. Const. art. 1, § 8, cl. 3 or T.C.A. § 67-6-313. LeTourneau Sales & Serv., Inc. v. Olsen, 691 S.W.2d 531, 1985 Tenn. LEXIS 598 (Tenn. 1985).

95. — — —Tax on Shipment in Commerce.

So long as a tax is not a direct tax on property carried in commerce between the states, imposed on the goods or indirectly collected from them, and is only a tax on the franchises granted to the carrier in consideration of the grant, the constitutional prohibition does not apply; but it does apply if, under the disguise of taxing a franchise or privilege, the state should undertake, by excessive taxation, to obstruct or prohibit the business of interstate commerce. Memphis & L.R.R. v. Nolan, 14 F. 532, 1882 U.S. App. LEXIS 2786 (W.D. Tenn. Sep. 9, 1882).

Personal property in transit in interstate commerce may not be subjected to local taxation, because the owner is a resident of the state and the property is within the limits of the county where the assessment was made, but may be subjected to regular taxation where it is removed from the cars for inspection, while actually in the private elevator to which it has been removed. Bacon v. Illinois, 227 U.S. 504, 33 S. Ct. 299, 57 L. Ed. 615, 1913 U.S. LEXIS 2325 (1913).

The power of congress over interstate commerce is supreme under the federal constitution, and levying of taxes by a state which will impede, interfere with, or burden such commerce is invalid. Atlas Powder Co. v. Goodloe, 131 Tenn. 490, 175 S.W. 547, 1914 Tenn. LEXIS 123 (1914).

A state may tax property used to carry on interstate commerce, but may not tax, burden, nor interfere with such commerce, nor tax as such gross earnings derived therefrom, nor impose a license fee or other burden upon the occupation or privilege of carrying on such commerce. New Jersey Bell Tel. Co. v. State Bd. of Taxes & Assmt., 280 U.S. 338, 50 S. Ct. 111, 74 L. Ed. 463, 1930 U.S. LEXIS 754 (1930).

96. — — —Tax After Commerce Ends.

Taxes may be imposed by states upon foreign or imported merchandise after its arrival in a state, although it was purchased by a resident dealer prior to its arrival. Waring v. Mayor of Mobile, 75 U.S. 110, 19 L. Ed. 342, 1868 U.S. LEXIS 1087 (1868).

Property taken from one state into another may be taxed in the latter state, although it is intended to carry the property out of the state for sale. Brown v. Houston, 114 U.S. 622, 5 S. Ct. 1091, 29 L. Ed. 257, 1885 U.S. LEXIS 1803 (1885).

A tax may be levied by states upon the charges or commissions of brokers who sell goods within the state that are brought from other states. Ficklen v. Shelby County Taxing Dist., 145 U.S. 1, 12 S. Ct. 810, 36 L. Ed. 601, 1892 U.S. LEXIS 2119 (1892).

Articles of commerce that are produced in one state and are sent into another state to be sold are subject to taxation under the laws of the latter state, although still belonging to the original owners. Pittsburg & S. Coal Co. v. Bates, 156 U.S. 577, 15 S. Ct. 415, 39 L. Ed. 538, 1895 U.S. LEXIS 2164 (1895).

Goods taken from a state into another state and stored are subject to taxation by the latter state while such goods are in the original packages, although such goods are ultimately to be shipped in such states. American Steel & Wire Co. v. Speed, 192 U.S. 500, 24 S. Ct. 365, 48 L. Ed. 538, 1904 U.S. LEXIS 968 (1904).

If property is shipped into a state as interstate commerce and is kept there for distribution, it ceases to be protected as interstate commerce and may be taxed by the state. General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

A city ordinance imposing a license tax in addition to ad valorem tax on sales of goods, although manufactured by a corporation located in a sister state, does not amount to regulation of interstate commerce. American Mfg. Co. v. City of St. Louis, 250 U.S. 459, 39 S. Ct. 522, 63 L. Ed. 1084, 1919 U.S. LEXIS 1764 (1919).

Foreign corporation's shipment of its products in carload lots to its Tennessee agents to be stored for distribution to customers in this state constituted intrastate business, subjecting the corporation to the provisions of the Tennessee statutes. Midland Linseed Products Co. v. Warren Bros. Co., 46 F.2d 870, 1925 U.S. App. LEXIS 2581 (6th Cir. Tenn. 1925).

97. — — —Tax on Local Commerce.

Goods produced in a state are liable for taxation there, although owned by a citizen of another state, and intended to be taken out of the state where produced. Coe v. Errol, 116 U.S. 517, 6 S. Ct. 475, 29 L. Ed. 715, 1886 U.S. LEXIS 1792 (1886).

Under U.S. Const. art. 1, § 8, cl. 3, the state has the power to tax local occupations, and the fact that the business happens to consist in interstate transactions does not necessarily make the tax a tax on interstate commerce, even though the tax is computed on the amount of capital invested. Ficklen v. Shelby County Taxing Dist., 145 U.S. 1, 12 S. Ct. 810, 36 L. Ed. 601, 1892 U.S. LEXIS 2119 (1892).

A Tennessee tax on property in the state which was the product of the soil of another state, and exempting similar products of the soil of Tennessee, was a direct restraint on interstate commerce, even though the products of the foreign state had come to rest in Tennessee. I. M. Darnell & Son Co. v. Memphis, 208 U.S. 113, 28 S. Ct. 247, 52 L. Ed. 413, 1908 U.S. LEXIS 1427 (1908).

It is not within the power of parties by the form of their contract to convert what is exclusively a local business into an interstate commerce business which is protected by the commerce clause. Browning v. Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 828, 1914 U.S. LEXIS 1265 (1914); Superior Oil Co. v. Mississippi ex rel. Knox, 280 U.S. 390, 50 S. Ct. 169, 74 L. Ed. 504, 1930 U.S. LEXIS 833 (1930).

Provisions of Tennessee excise and franchise tax statutes imposing tax on basis of local activities of corporations engaged in interstate commerce were valid and such corporations were not excused from payment of such taxes under the provisions of the commerce clause. Texas Gas Transmission Corp. v. Atkins, 205 Tenn. 495, 327 S.W.2d 305, 1959 Tenn. LEXIS 389 (1959).

98. — — —Discrimination in Tax.

States cannot tax articles taken from one state into another for sale, when similar articles of the latter state are not likewise taxed, nor require a license for the sale of such articles. Welton v. Missouri, 91 U.S. 275, 23 L. Ed. 347, 1875 U.S. LEXIS 1361 (1875); Webber v. Virginia, 103 U.S. 344, 26 L. Ed. 565, 1880 U.S. LEXIS 2126 (1881); Walling v. Michigan, 116 U.S. 446, 6 S. Ct. 454, 29 L. Ed. 691, 1886 U.S. LEXIS 1784 (1886); Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694, 1887 U.S. LEXIS 1993 (1887); Corson v. Maryland, 120 U.S. 502, 7 S. Ct. 655, 30 L. Ed. 699, 1887 U.S. LEXIS 1994 (1887).

States may levy the same rate of tax on all property when discrimination is made against importations. Machine Co. v. Gage, 100 U.S. 676, 25 L. Ed. 754, 1879 U.S. LEXIS 1869 (1880); Pittsburg & S. Coal Co. v. Bates, 156 U.S. 577, 15 S. Ct. 415, 39 L. Ed. 538, 1895 U.S. LEXIS 2164 (1895).

States may tax property that has been carried into a state as commerce after such property is at rest within the state, but such property cannot be taxed at a higher rate than domestic property of a similar kind is taxed. I.M. Darnell & Son Co. v. Memphis, 116 Tenn. 424, 95 S.W. 816, 1906 Tenn. LEXIS 5 (1906), rev'd, 208 U.S. 113, 28 S. Ct. 247, 52 L. Ed. 413, 1908 U.S. LEXIS 1427 (1908).

99. — — —Determination of Tax.

Acts 1935 (E.S.), ch. 5, was not unconstitutional as being a burden on interstate commerce where such act provided that in determining the valuation of property in the state for the purpose of determining the amount of tax under such act the commissioner was to consider the gross receipts of the entire entity, since these words must be construed in light of the context and intent of the act and by so construing them it becomes apparent that the commissioner was to compare the gross receipts in the state with the gross receipts of the entire entity in making his valuation, and the general words will be restrained to that intent. Corn v. Fort, 170 Tenn. 377, 95 S.W.2d 620, 1935 Tenn. LEXIS 145, 106 A.L.R. 647 (1935).

In taxing an interstate organism, a state cannot use a fiscal formula, whatever may be its appearance of certitude, to project the taxing power of the state plainly beyond its borders. Nashville, C. & S. L. Railway v. Browning, 310 U.S. 362, 60 S. Ct. 968, 84 L. Ed. 1254, 1940 U.S. LEXIS 593 (May 20, 1940).

100. — —Banking.

T.C.A. § 67-2-101(1)(B)(ii), which had the effect of levying a state tax on the earnings from certificates of deposits issued by out-of-state financial institutions but owned by residents of the state of Tennessee, violated the commerce clause. Dominion Nat'l Bank v. Olsen, 771 F.2d 108, 1985 U.S. App. LEXIS 22613 (6th Cir. 1985).

101. — —Common Carriers.

States cannot tax the gross receipts of common carriers that may be derived from interstate business. Galveston, H. & S.A. Ry. v. Texas, 210 U.S. 217, 28 S. Ct. 638, 52 L. Ed. 1031, 1908 U.S. LEXIS 1505 (1908).

Provision of Tennessee Code § 67-901 (now § 67-5-1301) authorizing assessment of property of motor carriers for ad valorem purposes under and by virtue of any certificate of convenience and necessity, permit or other operating authority granted by public service commission, and which permitted assessment of that portion of properties of irregular motor carriers operating into or through Tennessee as represented by the ratio of their Tennessee mileage to their total mileage did not violate commerce clause. E & L Transp. Co. v. Ellington, 212 Tenn. 671, 371 S.W.2d 456, 1963 Tenn. LEXIS 458 (1963); Howard Sober, Inc. v. Clement, 52 Tenn. App. 115, 372 S.W.2d 202, 1960 Tenn. App. LEXIS 140 (1960); Jack Cole Co. v. Ellington, 52 Tenn. App. 120, 372 S.W.2d 204, 1961 Tenn. App. LEXIS 136 (1961).

102. — — —Express Companies.

Tennessee act requiring express companies to pay a license tax for transporting one or more packages between points within the state, the amount to be computed on the basis of the length of the line, is unconstitutional as in effect a tax on interstate business, when applied to an express company engaged in interstate commerce. United States Express Co. v. Allen, 39 F. 712, 1889 U.S. App. LEXIS 2376 (C.C.E.D. Tenn. 1889), rev'd, Shelton v. Platt, 139 U.S. 591, 11 S. Ct. 646, 35 L. Ed. 273, 1891 U.S. LEXIS 2411 (U.S. Apr. 6, 1891).

Consideration of the power of a city to require express companies engaged in interstate commerce to take out licenses and pay fees therefor. Barrett v. City of New York, 232 U.S. 14, 34 S. Ct. 203, 58 L. Ed. 483, 1914 U.S. LEXIS 1456 (1914).

103. — — —Ferries.

Ferries over boundary river held interstate commerce, and state, though possessing power of regulation, cannot prohibit right to operate ferry by requirement of license. Mayor of Vidalia v. McNeely, 274 U.S. 676, 47 S. Ct. 758, 71 L. Ed. 1292, 1927 U.S. LEXIS 60 (1927).

Ordinance imposing license on ferry operating over boundary navigable stream held invalid as restraint on interstate commerce. Scott v. Village of Thebes, 17 F.2d 410, 1927 U.S. Dist. LEXIS 975 (E.D. Ill. 1927).

104. — — —Motor Vehicles.

A city cannot, under U.S. Const. art. 1, § 8, cl. 3, impose a license tax on motor buses engaged in interstate commerce exclusively, nor on those engaged in both intrastate and interstate commerce, unless it is reasonably limited to the intrastate commerce. Sprout v. City of S. Bend, 277 U.S. 163, 48 S. Ct. 502, 72 L. Ed. 833, 1928 U.S. LEXIS 682, 62 A.L.R. 45 (1928).

Acts 1939, ch. 183 requiring a permit and payment of a fee of five dollars for each motor vehicle unit consisting of a motor vehicle towing or transporting another motor vehicle for delivery for sale where the vehicle being towed or transported did not have a Tennessee license plate was not unconstitutional as being a burden on interstate commerce. George S. Bennett Transp. Corp. v. McCanless, 176 Tenn. 115, 138 S.W.2d 438, 1939 Tenn. LEXIS 106 (1940).

Imposition of state tax on gross revenue earned by plaintiff in transporting commodities from Memphis to various United States government reservations was not void on the ground that tax interfered with interstate commerce, since mere fact that commodities were delivered at United States government reservation did not constitute interstate commerce. Motor Transport Co. v. McCanless, 182 Tenn. 659, 189 S.W.2d 200, 1945 Tenn. LEXIS 264 (1945).

105. — — —Railroads.

A statute of a state which imposes a tax upon the tolls received by a railroad company within the state from companies existing without the state for the use of the railroad track of the company within the state for the running of trains carrying freight and passengers over such railroad that come from other states is not invalid because of interference with interstate commerce. New York, L.E. & W.R.R. v. Pennsylvania, 158 U.S. 431, 15 S. Ct. 896, 39 L. Ed. 1043, 1895 U.S. LEXIS 2268 (1895).

106. — — — —Passengers.

States cannot levy a tax on persons who leave a state or who pass through the same as passengers of public carriers. Crandall v. Nevada, 73 U.S. 35, 18 L. Ed. 745, 1867 U.S. LEXIS 936 (1867).

States cannot levy a tax upon passengers or merchandise transported from one state to another. Crandall v. Nevada, 73 U.S. 35, 18 L. Ed. 745, 1867 U.S. LEXIS 936 (1867); Case of State Freight Tax, 82 U.S. 232, 21 L. Ed. 146, 1872 U.S. LEXIS 1252 (1873); Wabash, St. L. & Pac. Ry. v. Illinois, 118 U.S. 557, 7 S. Ct. 4, 30 L. Ed. 244, 1886 U.S. LEXIS 1950 (1886); State ex rel. Carr v. Woodruff Sleeping & Parlor Coach Co., 114 Ind. 155, 15 N.E. 814, 1888 Ind. LEXIS 200 (1888).

107. — — — —Sleeping Cars.

The Tennessee Act of 1877, imposing a privilege tax on sleeping car companies of fifty dollars per annum per car used in the state, is invalid, as directly interfering with interstate commerce, since no distinction or exception was made of that part of the use in interstate transportation. Pickard v. Pullman S. Car Co., 117 U.S. 34, 6 S. Ct. 635, 29 L. Ed. 785, 1886 U.S. LEXIS 1814 (1886).

A specific tax cannot be imposed by a state upon sleeping cars used for the carrying of passengers from one state into another. Pickard v. Pullman S. Car Co., 117 U.S. 34, 6 S. Ct. 635, 29 L. Ed. 785, 1886 U.S. LEXIS 1814 (1886).

This state has the right to tax two sleeping cars engaged in business wholly within the state. Gibson County v. Pullman S. Car Co., 42 F. 572, 1890 U.S. App. LEXIS 2208 (C.C.D. Tenn. 1890).

108. — — — —Determination of Tax.

State may tax property of foreign railroad company located within the state though it is engaged in interstate commerce. In this case the tax held arbitrary as based on mileage without proper consideration of valuation of system in its entirety. Southern Ry. v. Kentucky, 274 U.S. 76, 47 S. Ct. 542, 71 L. Ed. 934, 1927 U.S. LEXIS 10 (1927).

In assessing the property of an interstate railroad company, the value of its entire system and not merely of that portion within Tennessee had first to be ascertained. From this value was deducted the value of the company's terminal buildings, shops, and nonoperating real estate. The remaining sum served as the base for calculating the value of the utility's “distributable” property attributable to Tennessee § 67-920 (now § 67-5-1320), which the commission ascertained by taking the ratio which company's mileage in Tennessee bears to its total mileage. It was held that in basing its apportionment on mileage, the Tennessee commission adopted a familiar and frequently sanctioned formula, and did not violate the commerce clause of the constitution. Nashville, C. & S. L. Railway v. Browning, 310 U.S. 362, 60 S. Ct. 968, 84 L. Ed. 1254, 1940 U.S. LEXIS 593 (May 20, 1940).

109. — — —Telegraph and Telephone.

A city may impose on a telegraph company a license tax on business done exclusively within such city. Postal Tel. Cable Co. v. Charleston, 153 U.S. 692, 14 S. Ct. 1094, 38 L. Ed. 871, 1894 U.S. LEXIS 2215 (1894).

The assessment of a municipal tax on the poles and wires of telegraph and telephone companies is not a violation of the commerce clause of the federal constitution. Western Union Tel. Co. v. Borough of New Hope, 187 U.S. 419, 23 S. Ct. 204, 47 L. Ed. 240, 1903 U.S. LEXIS 1659 (1903).

An occupational tax may be imposed under state authority by a municipality upon the business of a telephone company. Postal Telegraph-Cable Co. v. City of Richmond, 249 U.S. 252, 39 S. Ct. 265, 63 L. Ed. 590, 1919 U.S. LEXIS 2174 (1919).

A reasonable tax on telegraph poles imposed by a municipality is not unconstitutional, the telegraph company having accepted the provisions of the state law. Mackay Tel. & Cable Co. v. City of Little Rock, 250 U.S. 94, 39 S. Ct. 428, 63 L. Ed. 863, 1919 U.S. LEXIS 1719 (1919).

While telephone end user charges are derived entirely from interstate commerce, the state may base a tax on that income by a properly-drawn statute. South Cent. Bell Tel. Co. v. Celauro, 735 S.W.2d 228, 1987 Tenn. LEXIS 1069 (Tenn. 1987).

The sales tax may be collected on telephone end user charges if: (1) The taxed activity has a substantial nexus to the state; (2) The tax is fairly apportioned to the state; (3) The tax does not discriminate against interstate commerce; and (4) The tax is fairly related to services provided within the state. South Cent. Bell Tel. Co. v. Celauro, 735 S.W.2d 228, 1987 Tenn. LEXIS 1069 (Tenn. 1987).

110. — — —Vessels.

States cannot require owners of vessels engaged in foreign commerce to pay a sum for every passenger brought into a port of the state. Smith v. Turner, 48 U.S. 283, 12 L. Ed. 702, 1849 U.S. LEXIS 351 (1849); Henderson v. Mayor of N.Y., 92 U.S. 259, 23 L. Ed. 543, 1875 U.S. LEXIS 1753 (1875); New York v. Compagnie Generale Transatlantique, 107 U.S. 59, 2 S. Ct. 87, 27 L. Ed. 383, 1882 U.S. LEXIS 1200 (1883); Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 S. Ct. 826, 29 L. Ed. 158, 1885 U.S. LEXIS 1751 (1885).

Vessels entering a port of a state cannot be required by the state to pay a percentage on their tonnage. State Tonnage Tax Cases, 79 U.S. 204, 20 L. Ed. 370, 1870 U.S. LEXIS 1183 (1870); Peete v. Morgan, 86 U.S. 581, 22 L. Ed. 201, 1873 U.S. LEXIS 1467 (1874); Inman S.S. Co. v. Tinker, 94 U.S. 238, 24 L. Ed. 118, 1876 U.S. LEXIS 1854 (1876).

Vessels engaged in interstate commerce may be taxed at their home ports. Transportation Co. v. Wheeling, 99 U.S. 273, 25 L. Ed. 412, 1878 U.S. LEXIS 1540 (1878).

The Tennessee Act of 1879, taxing steamboat and railroad agents for the privilege of operating such agencies, is valid under U.S. Const. art. 1, § 8, cl. 3, and not an interference with interstate commerce. Lightburne v. Taxing Dist., 72 Tenn. 219, 1880 Tenn. LEXIS 1 (1880).

Cities cannot require persons running tow boats from the Gulf of Mexico to a city in a state to pay a license fee. Moran v. New Orleans, 112 U.S. 69, 5 S. Ct. 38, 28 L. Ed. 653, 1884 U.S. LEXIS 1853 (1884).

A state license fee, under the Wilson Act, as prerequisite to sale of intoxicating liquor over bar on steamboat within state boundaries, is valid exercise of police power, though the boat is engaged in interstate commerce, there being no interference with the commerce clause, since there is no property taxation whatever but only a tax for privilege of doing such a business while the boat is within the state's jurisdiction. Foppiano v. Speed, 199 U.S. 501, 26 S. Ct. 138, 50 L. Ed. 288, 1905 U.S. LEXIS 994 (1905).

111. — —Food and Drugs.

States may levy a tax on oleomargarine that is sold therein, or may prohibit its manufacture altogether. Hammond Packing Co. v. Montana, 233 U.S. 331, 34 S. Ct. 596, 58 L. Ed. 985, 1914 U.S. LEXIS 1251 (1914).

Small packages (envelopes) of a food preservative suitable for the consumer which are associated in their interstate shipment, subsequently sold separately, cannot be classed as original packages so as to escape a state law. Price v. Illinois, 238 U.S. 446, 35 S. Ct. 892, 59 L. Ed. 1400, 1915 U.S. LEXIS 1577 (1915).

112. — —Gas and Oil.

The business of selling gasoline at retail in quantities to suit customers, but not in the original packages, is properly taxable by the laws of the state, although, since the state itself produces no gasoline, it must of necessity have been brought into the state in interstate commerce. Askren v. Continental Oil Co., 252 U.S. 444, 40 S. Ct. 355, 64 L. Ed. 654, 1920 U.S. LEXIS 1522 (1920).

A Minnesota corporation, shipping oil to warehouse in Tennessee for later distribution there by agents, was doing intrastate business in Tennessee, and having failed to qualify as a foreign corporation, could not sue on a contract involving intrastate business. Midland Linseed Products Co. v. Warren Bros. Co., 46 F.2d 870, 1925 U.S. App. LEXIS 2581 (6th Cir. Tenn. 1925).

A state gasoline tax upon all sales of gasoline in state did not violate U.S. Const. art. 1, § 8, as applying to purchases made by air transport line on interstate trips across the state. There was no direct burden on interstate commerce. Eastern Air Transp., Inc. v. South Carolina Tax Comm'n, 285 U.S. 147, 52 S. Ct. 340, 76 L. Ed. 673, 1932 U.S. LEXIS 429 (1932).

Storage and withdrawal of gasoline brought into the state in interstate commerce is an intrastate transaction subject to a state privilege or excess tax, there being no tax on the gasoline, but on the privilege of storing and distributing it within the state. American Airways, Inc. v. Wallace, 57 F.2d 877, 1932 U.S. Dist. LEXIS 1156 (M.D. Tenn. 1932), aff'd, American Airways v. Wallace, 287 U.S. 565, 53 S. Ct. 15, 77 L. Ed. 498, 1932 U.S. LEXIS 40 (1932), aff'd, S. A. Woods Mach. Co. v. Commissioner, 53 S. Ct. 15, 287 U.S. 613, 77 L. Ed. 532, 1932 U.S. LEXIS 190 (1932).

State act taxing sellers, stores, and distributors of gasoline does not impose unlawful burden upon or undertake to regulate interstate commerce in its application to interstate carrier by airplanes. American Airways, Inc. v. Wallace, 57 F.2d 877, 1932 U.S. Dist. LEXIS 1156 (M.D. Tenn. 1932), aff'd, American Airways v. Wallace, 287 U.S. 565, 53 S. Ct. 15, 77 L. Ed. 498, 1932 U.S. LEXIS 40 (1932), aff'd, S. A. Woods Mach. Co. v. Commissioner, 53 S. Ct. 15, 287 U.S. 613, 77 L. Ed. 532, 1932 U.S. LEXIS 190 (1932).

Gasoline, purchased by railroad and brought into state, where it was stored pending later use in and without the state in interstate commerce, may be taxed by the state, as upon storage, it lost its interstate character. The prospective use of part in interstate commerce would make any burden upon such interstate commerce at the most only indirect. Nashville, C. & S. L. Ry. v. Wallace, 288 U.S. 249, 53 S. Ct. 345, 77 L. Ed. 730, 1933 U.S. LEXIS 37, 87 A.L.R. 1191 (1933).

The retail sale of gas at the burner tips by one who pipes the gas into the state or by a local distributor acquiring the gas from another who has similarly brought it into the state is subject to state taxation and regulation. Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S. Ct. 857, 86 L. Ed. 1090, 1942 U.S. LEXIS 782 (1942).

Natural gas, diverted from interstate pipeline to operate compressors used to maintain interstate flow, was in continuous flow until consumed by compressor engines and was not brought to rest in the state so as to be subject to use tax. Texas Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137, 1969 Tenn. LEXIS 486 (1969).

113. — —Highways.

Common carriers on the public highways, although engaged exclusively in interstate commerce, are subject to state regulation, and a privilege tax greater in amount than that imposed on other vehicles may be imposed, and it is immaterial how the tax money is used. Clark v. Poor, 274 U.S. 554, 47 S. Ct. 702, 71 L. Ed. 1199, 1927 U.S. LEXIS 644 (1927); Gatlin v. Harrison, 155 Tenn. 560, 296 S.W. 7, 1926 Tenn. LEXIS 79 (1927).

A state may levy a tax upon motor vehicles engaged in interstate commerce for use of the public highways which is a fair contribution to the cost of construction, maintenance and regulation of traffic, but, as it is a direct burden on interstate commerce, it must appear that it is so levied in good faith for such purpose. The mere fact that it falls upon a user of the highways is not sufficient to make it valid under U.S. Const. art. 1, § 8. Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S. Ct. 380, 75 L. Ed. 953, 1931 U.S. LEXIS 138 (1931).

A city or state which at its own expense furnishes streets and highways for the use of those engaged in interstate commerce may require compensation for the use of such streets and highways, and if the charges are reasonable and uniform they constitute no burden on interstate commerce. DeLay v. Chattanooga, 180 Tenn. 316, 174 S.W.2d 929, 1943 Tenn. LEXIS 17 (1943).

Imposition of use taxes on cost of compounding asphalt used by contractor in performance of state road construction contracts was not an attempt to impose tax on interstate commerce. Tennessee Blacktop, Inc. v. Benson, 494 S.W.2d 760, 1973 Tenn. LEXIS 411 (Tenn. 1973).

114. — —Intangibles.

A state can tax intangibles outside its borders if the intangibles are a part of the working capital invested within the state. American Bemberg Corp. v. Carson, 188 Tenn. 263, 219 S.W.2d 169, 1949 Tenn. LEXIS 339 (1949).

115. — —Intoxicating Liquor.

The retailing of liquor does not constitute interstate commerce; and lessee of privilege of running bar on vessel of Arkansas corporation operating between Arkansas and this state is liable for privilege license required by this state for maintaining bar while the vessel is at its port within jurisdiction of this state. Harrell v. Speed, 113 Tenn. 224, 81 S.W. 840, 1904 Tenn. LEXIS 19, 106 Am. St. Rep. 814, 1 L.R.A. (n.s.) 639 (1904).

A state cannot tax the privilege of selling intoxicating liquors on mail orders from other states, although the liquor is stored in the state, and upon mail order is delivered to a carrier in the state, since it is directly a tax on interstate commerce. Heyman v. Hays, 236 U.S. 178, 35 S. Ct. 403, 59 L. Ed. 527, 1915 U.S. LEXIS 1747 (1915).

Unstamped liquor being transported from Illinois through Tennessee to Mississippi for the purpose of sale in the latter state in violation of its statutes was not subject to seizure in Tennessee. McCanless v. Graham, 177 Tenn. 57, 146 S.W.2d 137, 1940 Tenn. LEXIS 11 (1941).

116. — —Lumber.

Business of kiln drying, surfacing, and resawing lumber shipped from a point outside of this state, through the state, to points beyond the state on through bills of lading, and stopped in Tennessee only for this milling in transit operation, is not interstate business, the business being done wholly in the state by a local corporation and not being such as to burden transportation of the manufactured product. State tax on earnings from business was valid. Jorgensen-Bennett Mfg. Co. v. Knight, 156 Tenn. 579, 3 S.W.2d 668, 1927 Tenn. LEXIS 153, 60 A.L.R. 393 (1927), appeal dismissed, 279 U.S. 877, 49 S. Ct. 185, 73 L. Ed. 1013 (1929), appeal dismissed, 278 U.S. 583, 49 S. Ct. 186, 73 L. Ed. 519, 1929 U.S. LEXIS 27 (U.S. Jan. 21, 1929).

117. — —Power.

The generation of electricity by water power is essentially local, analogous to manufacture, and is separate from a later transfer across state lines; therefore, a Utah tax on the generation does not violate U.S. Const. art. 1, § 8. Utah Power & Light Co. v. Pfost, 286 U.S. 165, 52 S. Ct. 548, 76 L. Ed. 1038, 1932 U.S. LEXIS 796 (1932).

Sale by Tennessee Valley Authority of electricity generated in Alabama and Kentucky to pipeline company engaged in interstate transportation of natural gas, which electricity was taken from high voltage lines through step down transformers for immediate use as power at compressor stations used to propel gas to northeastern United States, was local sale subject to sales tax payable by pipeline company and such tax did not impose burden on interstate commerce. Texas Eastern Transmission Corp. v. Benson, 480 S.W.2d 905, 1972 Tenn. LEXIS 338 (Tenn. 1972), appeal dismissed, 409 U.S. 1003, 93 S. Ct. 441, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 620 (1972).

118. — —Tobacco.

Tobacco products stored in public warehouses in Tennessee while awaiting orders from customers both within and outside state had come to rest, hence imposition by Tennessee of franchise and excise taxes did not constitute a burden on interstate commerce. R.J. Reynolds Tobacco Co. v. Carson, 187 Tenn. 157, 213 S.W.2d 45, 1948 Tenn. LEXIS 422 (1948), superseded by statute as stated in, Howard Cotton Co. v. Olsen, 675 S.W.2d 154, 1984 Tenn. LEXIS 932 (Tenn. 1984).

119. — —Wharves.

States may erect wharves, collect fees for the use thereof, and collect fees at quarantine stations. Packet Co. v. Keokuk, 95 U.S. 80, 24 L. Ed. 377, 1877 U.S. LEXIS 2137 (1877); Packet Co. v. St. Louis, 100 U.S. 423, 25 L. Ed. 688, 1879 U.S. LEXIS 1835 (Tenn. 1880); Packet Co. v. Catlettsburg, 105 U.S. 559, 26 L. Ed. 1169, 1881 U.S. LEXIS 2157 (1882); Morgan's S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455, 6 S. Ct. 1114, 30 L. Ed. 237, 1886 U.S. LEXIS 1945 (1886); Ouachita Packet Co. v. Aiken, 121 U.S. 444, 7 S. Ct. 907, 30 L. Ed. 976, 1887 U.S. LEXIS 2063 (1887).

Wharfage fees cannot be charged to vessels of other states when such fees are not charged to local vessels of the state. Guy v. Baltimore, 100 U.S. 434, 25 L. Ed. 743, 1879 U.S. LEXIS 1837 (Tenn. Mar. 22, 1880).

120. — —Waterways.

The constitution of the United States does not prohibit states from improving harbors, bays, and rivers which are aids to commerce, nor from collecting toll for the use of improved natural waterways. County of Mobile v. Kimball, 102 U.S. 691, 26 L. Ed. 238, 1880 U.S. LEXIS 2080 (Tenn. 1880); Sands v. Manistee River Imp. Co., 123 U.S. 288, 8 S. Ct. 113, 31 L. Ed. 149, 1887 U.S. LEXIS 2171 (1887).

121. —Taxation and Regulation of Foreign Corporations.

States may prescribe terms upon which foreign corporations may do business within their limits, and may impose a tax or fee for the privilege of maintaining an office within the state. Paul v. Virginia, 75 U.S. 168, 19 L. Ed. 357, 1868 U.S. LEXIS 1092 (1868), overruled in part, United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440, 1944 U.S. LEXIS 1199, 1944 Trade Cas. (CCH) P57253 (1944), superseded by statute as stated in, City of Charleston v. Government Employees Ins. Co., 869 F. Supp. 378, 1994 U.S. Dist. LEXIS 17677 (D. Tenn. 1994), overruled, Legal Principles Defining the Scope of the Federal Antitrust Exemption for Insurance, 2005 U.S. Comp. Gen. LEXIS 43 (Comp. Gen. Mar. 4, 2005), overruled, Sun Life Assur. Co. of Can. v. Manna, 227 Ill. 2d 128, 879 N.E.2d 320, 2007 Ill. LEXIS 1699 (2007); Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 5 S. Ct. 739, 28 L. Ed. 1137, 1885 U.S. LEXIS 1726 (1885); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 8 S. Ct. 737, 31 L. Ed. 650, 1888 U.S. LEXIS 1926 (1888); Hooper v. California, 155 U.S. 648, 15 S. Ct. 207, 39 L. Ed. 297, 1895 U.S. LEXIS 2113 (1895); New York v. Roberts, 171 U.S. 658, 19 S. Ct. 58, 43 L. Ed. 323, 1898 U.S. LEXIS 1630 (1898).

New York corporation with its principal office in that state which had established local offices in Tennessee through which salesmen sold securities on commission were subject to privilege tax on such offices and collection of such taxes did not constitute a burden on interstate commerce even though all orders were accepted in New York. King Merritt & Co. v. Worrall, 212 Tenn. 141, 368 S.W.2d 745, 1963 Tenn. LEXIS 406 (1963).

A railroad cannot obtain relief from the assessment of its property for state taxation on the ground that the amount of taxes is so much higher in that state so as to restrain interstate commerce where the railroad does not allege or contend that its properties are being taxed any higher than purely intrastate railroads or intrastate utilities in the same state. Louisville & N.R.R. v. Public Serv. Comm'n, 249 F. Supp. 894, 1966 U.S. Dist. LEXIS 10536 (M.D. Tenn. 1966), aff'd, 389 F.2d 247, 1968 U.S. App. LEXIS 8054 (6th Cir. Tenn. 1968).

Imposition of excise and franchise taxes provided by chapters 27 and 29 of title 67 (title 67, chapter 4, former parts 8 and 9) upon foreign oil pipeline company which maintained pipeline across state, maintained right-of-way and other valuable properties in the state in its corporate capacity and exercised its corporate franchise within the state did not amount to a violation of the due process and commerce clauses of the United States constitution. Mid-Valley Pipeline Co. v. King, 221 Tenn. 724, 431 S.W.2d 277, 1968 Tenn. LEXIS 532 (1968), appeal dismissed, 393 U.S. 321, 89 S. Ct. 556, 21 L. Ed. 2d 517, 1969 U.S. LEXIS 2869 (1969).

The Tennessee Investor Protection Act (T.C.A. § 48-103-101 et seq.), the Tennessee Business Combination Act (T.C.A. § 48-103-201 et seq.), the Tennessee Control Share Acquisition Act (T.C.A. § 48-103-301 et seq.), and the Tennessee Authorized Corporation Protection Act (T.C.A. § 48-103-401 et seq.) violate the commerce clause to the extent they apply to target corporations organized under the laws of states other than Tennessee. Tyson Foods, Inc. v. McReynolds, 865 F.2d 99, 1989 U.S. App. LEXIS 490 (6th Cir. Tenn. 1989).

122. — —Doing Business in the State.

If railroad companies existing under the statutes of different states consolidate, a statute requiring a fee for filing articles of consolidation is not a tax on interstate commerce. Ashley v. Ryan, 153 U.S. 436, 14 S. Ct. 865, 38 L. Ed. 773, 1894 U.S. LEXIS 2194 (1894).

For the purpose of erecting a single factory within the state, it was unnecessary for a foreign corporation to comply with the state statute specifying prerequisites to foreign corporations doing business in the state. Davis & Rankin Bldg. & Mfg. Co. v. Caigle, 53 S.W. 240, 1899 Tenn. Ch. App. LEXIS 69 (Tenn. Ch. App. 1899).

One claiming to be the agent of a foreign corporation is not engaged in interstate commerce so as not to be subject to taxation under state laws, where he sold goods in state by sample, forwarded orders to foreign branch house from which he received the goods ordered and delivered them to the purchasers, in view of fact that the goods were consigned and charged to him individually without reference to the persons to whom he sold them, and that he broke the original packages on receipt thereof, and that the foreign corporation had a branch house in the state. Kimmell v. State, 104 Tenn. 184, 56 S.W. 854, 1899 Tenn. LEXIS 26 (1899).

States cannot impose a tax which is in any way a burden upon interstate commerce, but a tax may be imposed on corporations engaged in interstate commerce for such part of their business as is wholly within the state imposing the tax and which does not affect their interstate business. Allen v. Pullman's Palace Car Co., 191 U.S. 171, 24 S. Ct. 39, 48 L. Ed. 134, 1903 U.S. LEXIS 1475 (1903).

States cannot require that foreign corporations engaged in interstate commerce shall, as a condition to do business in the state, file certain statements, pay specified fees, and obtain a license from the state. International Textbook Co. v. Pigg, 217 U.S. 91, 30 S. Ct. 481, 54 L. Ed. 678, 1910 U.S. LEXIS 1946 (1910).

States may require foreign insurance companies doing business in the state to pay a tax on an excess of premiums received over losses and expenses on business done within the state. New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495, 34 S. Ct. 167, 58 L. Ed. 332, 1913 U.S. LEXIS 2527 (1913).

Kentucky trading stamp corporation which maintained office and warehouse in Kentucky and sent agents into Tennessee to sell stamps to local merchants and which contracted with local shop to redeem stamps in Tennessee at a commission was subject to privilege tax as a trading stamp company doing business in Tennessee and was not immune from such tax under commerce clause of United States constitution. M. & M. Stamp Co., Inc. v. Harris, 212 Tenn. 158, 368 S.W.2d 752, 1963 Tenn. LEXIS 408 (1963).

123. — —Tax on Capital Stock.

States may provide for taxing the capital stock of carriers engaged in interstate transportation, by taking as a basis the proportion that the miles operated in the state bear to the whole number of miles of the line of the carrier. Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S. Ct. 876, 35 L. Ed. 613, 1891 U.S. LEXIS 2494 (U.S. May 25, 1891).

Foreign corporations engaged in interstate commerce cannot be required by a state to pay a designated percent upon their capital stock as a tax before being permitted to do business in the state. Western Union Tel. Co. v. Kansas ex rel. Coleman, 216 U.S. 1, 30 S. Ct. 190, 54 L. Ed. 355, 1910 U.S. LEXIS 1870 (1910); Pullman Co. v. Kansas ex rel. Coleman, 216 U.S. 56, 30 S. Ct. 232, 54 L. Ed. 378, 1910 U.S. LEXIS 1871 (1910); Ludwig v. Western Union Tel. Co., 216 U.S. 146, 30 S. Ct. 280, 54 L. Ed. 423, 1910 U.S. LEXIS 1881 (1910).

The mere fact that a corporation is engaged in interstate commerce does not exempt its property from state taxation nor preclude the state from fixing a privilege tax or entrance fee upon its right to enter a foreign state and transact business; and resort may be held to the receipts on the property or capital employed by such foreign corporation as a measure of a tax which is lawful authority within the state. Atlas Powder Co. v. Goodloe, 131 Tenn. 490, 175 S.W. 547, 1914 Tenn. LEXIS 123 (1914).

Acts 1909, ch. 504, exacting privilege tax measure by authorized capital stock from foreign companies coming into state to do business herein is not invalid as imposing unconstitutional burden on interstate powder manufacturer, which sells powder in interstate commerce and which maintains factory and warehouses in state from which it fills orders for interstate and intrastate shipments. Atlas Powder Co. v. Goodloe, 131 Tenn. 490, 175 S.W. 547, 1914 Tenn. LEXIS 123 (1914).

The imposition of a state tax as a condition of admitting a foreign corporation engaged in interstate commerce to do business in a state, based upon its capital stock, and of a franchise tax based upon capital, surplus and undivided profits, constitutes a burden on interstate commerce. Looney v. Crane Co., 245 U.S. 178, 38 S. Ct. 85, 62 L. Ed. 230, 1917 U.S. LEXIS 1728 (1917).

The imposition of an excise tax as a condition of admitting a foreign manufacturing corporation engaged in both local and interstate commerce based upon capital stock without limitation of amount is an unlawful burden on interstate commerce. International Paper Co. v. Massachusetts, 246 U.S. 135, 38 S. Ct. 292, 62 L. Ed. 624, 1918 U.S. LEXIS 1528, 1918C Ann. Cas. 617 (1918); Locomobile Co. of Am. v. Massachusetts, 246 U.S. 146, 38 S. Ct. 298, 62 L. Ed. 631, 1918 U.S. LEXIS 1529 (1918).

A state has a right to tax all of a corporation's property therein without regard to its use in interstate commerce, and to impose a license fee or excise on its local business. It may impose an annual license “of 5¢ on each $100 of the proportion of its issued capital stock * * * represented by business transacted and property located in this state.” Western Cartridge Co. v. Emmerson, 281 U.S. 511, 50 S. Ct. 383, 74 L. Ed. 1004, 1930 U.S. LEXIS 405 (1930).

124. — —Franchise Tax.

Qualifications by a foreign corporation to do business in the state does not give the state the right to levy a franchise tax which burdens the sale in the original packages of goods imported. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 53 S. Ct. 373, 77 L. Ed. 710, 1933 U.S. LEXIS 36 (1933).

The franchise of a corporation that is engaged in interstate commerce may be taxed by a municipal corporation existing within a state where such corporation is engaged in business. Atlantic & Pac. Tel. Co. v. Philadelphia, 190 U.S. 160, 23 S. Ct. 817, 47 L. Ed. 995, 1903 U.S. LEXIS 1543 (1903).

A foreign corporation engaged in the manufacture of flour in its home state, which it sells to wholesale dealers throughout the country, is engaged in business and therefore liable to an excise tax within a state in which it has an office where it employs several salesmen for the purpose of inducing local tradesmen to carry and deal in its flour, who solicit and take orders from retail dealers and turn them over to the nearest wholesale dealer. Cheney Bros. Co. v. Massachusetts, 246 U.S. 147, 38 S. Ct. 295, 62 L. Ed. 632, 1918 U.S. LEXIS 1530 (1918).

State franchise tax on foreign corporation, constructing bridge over boundary river, held valid, such tax not being one on interstate business, but on the privilege of doing business, and the corporation not being a federal agency. Arkansas & Memphis Ry. Bridge & Term. Co. v. State, 174 Ark. 420, 295 S.W. 378, 1927 Ark. LEXIS 374 (1927), cert. denied, Arkansas & M. Ry. Bridge & Terminal Co. v. Arkansas, 275 U.S. 548, 48 S. Ct. 85, 72 L. Ed. 419, 1927 U.S. LEXIS 490 (1927).

In determining whether commissioner has abused his discretion in imposing excise and franchise taxes on foreign corporation doing business in Tennessee the mere fact that formula for franchise tax gives a factor of more than 99% does not per se invalidate the use of formula or show that Tennessee has taxed extraterritorial values since entire coordinate scheme of taxation must be considered. American Bemberg Corp. v. Carson, 188 Tenn. 263, 219 S.W.2d 169, 1949 Tenn. LEXIS 339 (1949).

125. — —Net Earnings and Income.

A tax on a foreign corporation leasing refrigerator cars to railway companies upon the basis of earning from the operation within the state, although largely derived from interstate commerce, and which is in lieu of all other taxes, and a part of the general taxation system, is not an unlawful burden on interstate commerce. Cudahy Packing Co. v. Minnesota, 246 U.S. 450, 38 S. Ct. 373, 62 L. Ed. 827, 1918 U.S. LEXIS 1566 (1918).

A state net income tax, incidentally affecting carriers engaged in interstate commerce by taxing that portion of their income derived from business transacted and property located within the state, is not an unconstitutional interference with or regulation of commerce among the states. United States Glue Co. v. Oak Creek, 247 U.S. 321, 38 S. Ct. 499, 62 L. Ed. 1135, 1918 U.S. LEXIS 1913 (1918).

A tax based on the net profits earned within the state, though these profits may have been derived mainly from interstate commerce, whether it be deemed a property tax or a franchise tax, is not obnoxious to the commerce clause. Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S. Ct. 45, 65 L. Ed. 165, 1920 U.S. LEXIS 1213 (1920).

An apportionment of a corporation's income to one state for taxation must be reasonable and not arbitrary, otherwise it will violate U.S. Const. art. 1, § 8. Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S. Ct. 385, 75 L. Ed. 879, 1931 U.S. LEXIS 133 (1931).

Where, in determining the amount of net earnings of a domestic radio broadcasting corporation subject to the excise tax imposed by §§ 67-2701, 67-2706—67-2712 (former § 67-4-801, 67-4-809, 67-4-810), the commissioner used the proportion of the gross receipts in Tennessee to the amount of the gross receipts everywhere, and it was conceded by the corporation that if it was liable at all the method of computing the tax was correct, and where the evidence was to the effect that most of the revenue came from local advertisers and that listeners outside the state were not numerous, such corporation was not protected from liability by the provisions of the commerce clause. WDOD Broadcasting Corp. v. Stokes, 180 Tenn. 677, 177 S.W.2d 837, 1941 Tenn. LEXIS 8 (1941).

Even if taxpayer's business is wholly in interstate commerce, a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there or upon net income derived from within the state is not prohibited by the commerce clause. Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S. Ct. 857, 86 L. Ed. 1090, 1942 U.S. LEXIS 782 (1942).

Statement of United States supreme court in Memphis Natural Gas Co. v. Beeler , 315 U.S. 649, 62 S. Ct. 857, 86 L. Ed. 1090, 1942 U.S. LEXIS 782 (1942), “in any case if taxpayer's business were wholly in interstate commerce, a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there … or upon net income derived from within the state … is not prohibited by the Commerce Clause …” was not obiter dicta and the Tennessee supreme court is bound thereby. Memphis Natural Gas Co. v. McCanless, 180 Tenn. 695, 177 S.W.2d 843, 1944 Tenn. LEXIS 338, cert. denied, 323 U.S. 785, 65 S. Ct. 275, 89 L. Ed. 627 (1944).

Mere fact that net earnings upon which a tax is based is derived from interstate business in Tennessee does not necessarily impose a burden on interstate commerce. American Bemberg Corp. v. Carson, 188 Tenn. 263, 219 S.W.2d 169, 1949 Tenn. LEXIS 339 (1949).

126. — —Suits.

A foreign corporation engaged in interstate commerce only is not for that reason immune from the service of process under the laws of the state in which it is carrying on such business. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, 1914 U.S. LEXIS 1109 (1914).

A foreign corporation booking theatrical acts in the state was doing intrastate business in the state and may be required by state statute to file a copy of its charter with the secretary of state as a prerequisite to suing in the state, as interstate commerce was not affected under U.S. Const. art. 1, § 8, cl. 3. Interstate Amusement Co. v. Albert, 239 U.S. 560, 36 S. Ct. 168, 60 L. Ed. 439, 1916 U.S. LEXIS 1931 (1916).

The state statutes in regard to foreign corporations have no application to interstate commerce. Accordingly, when a corporation goes into a state other than that of its origin to collect, according to the usual or prevailing methods, the amount which has become due in transactions in interstate commerce, the state cannot, consistently with the limitation arising from the commerce clause, obstruct the attainment of that purpose. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

A foreign corporation, although transacting intrastate business in Tennessee with various people, without complying with the statutes, is not precluded by reason of its failure to comply with such statutes from suing in the state courts on a contract constituting interstate business. Burton Explosives, Inc. v. Strider, 25 Tenn. App. 440, 158 S.W.2d 731, 1941 Tenn. App. LEXIS 129 (1941).

127. —Privilege Taxes.

A state cannot lay a privilege tax, or any other tax, on interstate commerce in any form, whether by duties on transportation of goods, or on receipts derived therefrom, or on the business or occupation of transportation, because such a tax is a burden on and regulation of interstate commerce, which belongs solely to congress. Illinois Cent. R.R. v. City of Memphis, 21 Tenn. App. 327, 110 S.W.2d 352, 1936 Tenn. App. LEXIS 73 (Tenn. Ct. App. 1936).

A state cannot tax interstate commerce, either by levying a tax upon the business which constitutes such commerce, or by taxing the privilege of engaging in it. State v. Southern Oil Service, Inc., 174 Tenn. 232, 124 S.W.2d 704, 1938 Tenn. LEXIS 84 (1939).

The mere fact that net earnings upon which a privilege tax is assessed were derived from interstate business done in Tennessee does not show an unlawful burden on interstate commerce. American Bemberg Corp. v. Carson, 188 Tenn. 263, 219 S.W.2d 169, 1949 Tenn. LEXIS 339 (1949).

128. — —Solicitation of Business.

Power of congress to regulate commerce among the states is violated by state act requiring privilege payment from sellers by sample in certain counties who have no regular licensed business place therein, insofar as the act applies to those soliciting sale for foreign persons or firms. Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694, 1887 U.S. LEXIS 1993 (1887).

A privilege tax on the business of soliciting in Tennessee by local firm representing nonresident wholesalers, purchases of goods held in other states to be delivered after the orders are taken, is a direct burden on interstate commerce and is violative of U.S. Const. art. 1, § 8. Interstate commerce cannot be taxed, even in the person of a resident of the state. Stockard v. Morgan, 185 U.S. 27, 22 S. Ct. 576, 46 L. Ed. 785, 1902 U.S. LEXIS 2236 (1902).

States cannot impose a license tax upon persons who solicit sales of goods in one state that are to be shipped from another state for delivery to the purchasers. Crenshaw v. Arkansas, 227 U.S. 389, 33 S. Ct. 294, 57 L. Ed. 565, 1913 U.S. LEXIS 2311 (1913).

A state may not, consistently with the commerce clause of the federal constitution, impose a license tax upon a nonresident merchant traveling from place to place within the state, and soliciting orders by sample, lists and catalogs for goods which are afterward shipped into the state in carload lots to his order, and which he delivers from the cars to the persons ordering them. Stewart v. Michigan, 232 U.S. 665, 34 S. Ct. 476, 58 L. Ed. 786, 1914 U.S. LEXIS 1295 (1914).

Transaction whereby dealer sold coal for delivery to buyer's customers in other states was interstate commerce and not subject to regulation by state law requiring license. Flanagan v. Federal Coal Co., 267 U.S. 222, 45 S. Ct. 233, 69 L. Ed. 583, 1925 U.S. LEXIS 366 (1925).

129. — — —Agents.

Agents of carriers engaged in carrying freight from one state into another cannot be required to pay a license fee in the state where the agent is located. McCall v. California, 136 U.S. 104, 10 S. Ct. 881, 34 L. Ed. 391, 1890 U.S. LEXIS 2202 (1890); Norfolk & W.R.R. v. Pennsylvania, 136 U.S. 114, 10 S. Ct. 958, 34 L. Ed. 394, 1890 U.S. LEXIS 2203 (1890); Crutcher v. Kentucky, 141 U.S. 47, 11 S. Ct. 851, 35 L. Ed. 649, 1891 U.S. LEXIS 2497 (U.S. May 25, 1891).

Municipal corporations cannot require agents or persons soliciting orders for goods on behalf of manufacturers of other states to pay a license tax. Brennan v. Titusville, 153 U.S. 289, 14 S. Ct. 829, 38 L. Ed. 719, 1894 U.S. LEXIS 2184 (1894).

Statutory imposition of privilege tax on occupation of agent in the state for laundries outside the state does not violate the commerce clause, since the agent is not engaged in “commerce,” which term implies trade or traffic. Smith v. Jackson, 103 Tenn. 673, 54 S.W. 981, 1899 Tenn. LEXIS 145, 47 L.R.A. 416 (1899).

The statute of a state imposing a tax upon persons who act as agents for the owners of property without the state, and who make sales of such property by sample within such state, violates the commerce clause of the federal constitution. Stockard v. Morgan, 185 U.S. 27, 22 S. Ct. 576, 46 L. Ed. 785, 1902 U.S. LEXIS 2236 (1902); Rearick v. Pennsylvania, 203 U.S. 507, 27 S. Ct. 159, 51 L. Ed. 295, 1906 U.S. LEXIS 1616 (1906).

The business of erecting lightning rods as agent of a nonresident manufacturer on whose behalf the agent had solicited the orders for the sale of the rods may be subjected to municipal license without violating the commerce clause of the federal constitution, although the seller was to bear the expense of erecting the rods. Browning v. Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 828, 1914 U.S. LEXIS 1265 (1914).

A foreign sewing machine company is liable to license, where the company maintains a regular store from which local agents are supplied with machines to be taken into the rural districts for sale or rent. Singer Sewing Mach. Co. v. Brickell, 233 U.S. 304, 34 S. Ct. 493, 58 L. Ed. 974, 1914 U.S. LEXIS 1290 (1914).

130. — — —Peddlers.

A state may require peddlers to take out a license, and may fix a penalty for a failure to do so, where the articles sold by such peddlers were not manufactured beyond the limits of the state. Emert v. Missouri, 156 U.S. 296, 15 S. Ct. 367, 39 L. Ed. 430, 1895 U.S. LEXIS 2135 (1895).

Peddlers may be required by a state statute to obtain a license to sell goods in that state belonging to residents in other states, when no discrimination is made between articles manufactured and owned by residents of other states and those manufactured and owned by residents of that state. Emert v. Missouri, 156 U.S. 296, 15 S. Ct. 367, 39 L. Ed. 430, 1895 U.S. LEXIS 2135 (1895).

131. — —Express Companies.

Tennessee privilege tax imposed for doing business as an express company in the state is not unconstitutional in its application to a company none of the business of which is done solely within the state, where no intention to obstruct or prohibit such company from doing its business of commerce between the states can be inferred. Memphis & L.R.R. v. Nolan, 14 F. 532, 1882 U.S. App. LEXIS 2786 (W.D. Tenn. Sep. 9, 1882).

132. — —Gas and Oil.

Oil shipped from Illinois to county in Tennessee upon orders already taken there by traveling salesman of Indiana corporation, and there delivered to him, and balance of car of similar oil rebilled to another county in Tennessee where orders therefrom were filled, was entirely in interstate commerce, and the corporation could not be subjected to a privilege tax without directly burdening interstate commerce. Western Oil Ref. Co. v. Lipscomb, 244 U.S. 346, 37 S. Ct. 623, 61 L. Ed. 1181, 1917 U.S. LEXIS 1644 (1917).

Acts 1931 (2nd E. S.), ch. 13, art. 3, § 1, item 62, levying a privilege tax on all oil shipped into the state and held in depots for sale after processing, is not unconstitutional as being discriminatory against interstate commerce. Spur Distrib. Co. v. Lindsey, 166 Tenn. 424, 62 S.W.2d 53, 1932 Tenn. LEXIS 151 (Tenn. 1932), appeal dismissed, Spur Distributing Co. v. Lindsey, 290 U.S. 588, 54 S. Ct. 81, 78 L. Ed. 519, 1933 U.S. LEXIS 477 (1933), dismissed, Vermont v. New Hampshire, 54 S. Ct. 81, 290 U.S. 589, 78 L. Ed. 520, 1933 U.S. LEXIS 487 (1933).

Gasoline in tank cars on distributor's spur track, not for storage purposes, but where there were no outlets for unloading, does not constitute a complete delivery, the gasoline is still in interstate commerce and the privilege tax is not imposed until the cars are placed for unloading. Campbell Oil Co. v. Bates, 172 Tenn. 632, 113 S.W.2d 756, 1937 Tenn. LEXIS 108 (1937).

133. — —Mail Order Companies.

Statute authorizing state commissioner of revenue's imposition of a duty on mail order companies to register as dealers in Tennessee and collect use tax on their mail order sales violated commerce clause of United States constitution.Bloomingdale's by Mail, Ltd. v. Huddleston, 848 S.W.2d 52, 1992 Tenn. LEXIS 703 (Tenn. 1992), rehearing denied, Bloomingdale's by Mail v. Huddleston, — S.W.2d —, 1993 Tenn. LEXIS 52 (Tenn. Feb. 22, 1993), cert. denied, Huddleston v. Bloomingdale's by Mail, 509 U.S. 907, 113 S. Ct. 3002, 125 L. Ed. 2d 694, 1993 U.S. LEXIS 4298 (1993).

134. — —Manufacturers.

The imposition of a tax of $1.20 per barrel for the privilege of manufacturing beer in the state is not unconstitutional as placing a burden upon interstate commerce, by operating as a restriction on interstate commerce. Lindsey v. William Gerst Brewing Co., 168 Tenn. 62, 73 S.W.2d 703, 1934 Tenn. LEXIS 20 (1934).

A tax imposed by the state upon the privilege of manufacturing a commodity in the state is not violative of U.S. Const. art. 1, § 8 as placing a burden upon interstate commerce. Lindsey v. William Gerst Brewing Co., 168 Tenn. 62, 73 S.W.2d 703, 1934 Tenn. LEXIS 20 (1934).

A tax upon the privilege of manufacturing an article within the state is not unconstitutional, although the article was manufactured with the intention of shipping the finished product, or a part thereof, into another state. Lindsey v. William Gerst Brewing Co., 168 Tenn. 62, 73 S.W.2d 703, 1934 Tenn. LEXIS 20 (1934).

The mere fact that a tax by the state on the privilege of manufacturing an article in the state affects the amount of the manufactured products shipped in interstate commerce does not render such tax invalid. Lindsey v. William Gerst Brewing Co., 168 Tenn. 62, 73 S.W.2d 703, 1934 Tenn. LEXIS 20 (1934).

135. — —Motor Carriers.

Lease of trucks was taxable under Retailers' Sales Tax Act (Code § 67-3001 et seq., (now § 67-6-101 et seq.)) and fact that trucks were used by lessee in interstate commerce did not make tax violative of the commerce clause of the constitution. Central Transp. Co. v. Atkins, 202 Tenn. 512, 305 S.W.2d 940, 1957 Tenn. LEXIS 416, cert. denied, 355 U.S. 913, 78 S. Ct. 343, 2 L. Ed. 2d 274, 1958 U.S. LEXIS 1705 (Jan. 6, 1958).

136. — —Photography.

A peddler's license may not be required by a state of an agent of a nonresident portrait manufacturer to whom the latter ships portraits made to fill orders taken by local solicitors, and in separate parcels, frames for such portraits, the orders for which contemplate delivery in appropriate frames which the customer may select at wholesale prices, and offering the customers their choice of three different styles of frames, the customer not being required to take the frame. Davis v. Virginia, 236 U.S. 697, 35 S. Ct. 479, 59 L. Ed. 795, 1915 U.S. LEXIS 1712 (1915).

137. — —Railroads.

A Tennessee privilege tax on railroads “for taking up and transporting freight and passengers” from one point in the state to another point in the state, is not violative of U.S. Const. art. 1, § 8, cl. 3, as it does not in any way affect interstate commerce. Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897).

A state privilege tax on sleeping car companies of five hundred dollars per annum for each car, local or interstate, is void as a direct interference with interstate commerce, but a later Tennessee statute imposing a privilege tax of three thousand dollars per year on companies carrying local passengers is valid, as the company could continue its interstate business without tax and decline all local service. The tax therefore does not interfere with interstate commerce. Allen v. Pullman's Palace Car Co., 191 U.S. 171, 24 S. Ct. 39, 48 L. Ed. 134, 1903 U.S. LEXIS 1475 (1903).

A privilege tax upon a commercial railway, for terminal facilities furnished another railway, would be invalid, being a burden on any regulation of interstate commerce, where the trains of such other railway immediately crossed the state line, and such statute will be construed as having no application to such terminal railroad. Illinois Cent. R.R. v. City of Memphis, 21 Tenn. App. 327, 110 S.W.2d 352, 1936 Tenn. App. LEXIS 73 (Tenn. Ct. App. 1936).

138. —Indians.

Indians are wards of the nation, and general acts of congress do not apply to them unless the intent to include them is manifest. McCandless v. United States ex rel. Diabo, 25 F.2d 71, 1928 U.S. App. LEXIS 2899 (3d Cir. 1928).

Congress has authority to determine the propriety of guardianship over Indians. Whitebird v. Eagle-Picher Lead Co., 28 F.2d 200, 1928 U.S. Dist. LEXIS 1461 (N.D. Okla. 1928), aff'd, 40 F.2d 479, 1930 U.S. App. LEXIS 3211 (10th Cir.).

Power of congress to regulate commerce, as applied to Indian tribes, includes regulation of intercourse and traffic in which the United States and the Indians are both concerned, but does not include power to punish for commission of crime in Indian territory within the state. State act giving state courts criminal jurisdiction over crimes of murder, rape, or larceny committed in the Indian territory by Cherokees resident therein is constitutional. State v. Foreman, 16 Tenn. 256, 1835 Tenn. LEXIS 89 (1835).

139. Clause 4.

140. —Admission and Exclusion.

Power of congress to regulate the immigration of aliens into the United States, and to provide for the deportation of persons who are not entitled to admission. Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 29 S. Ct. 671, 53 L. Ed. 1013, 1909 U.S. LEXIS 1921 (1909).

The admission and exclusion of aliens is a subject within the exclusive control of congress, under U.S. Const. art. 1, § 8, cl. 4, and a state statute attempting to regulate the subject within the state is void. Arrowsmith v. Voorhies, 55 F.2d 310, 1931 U.S. Dist. LEXIS 1937 (E.D. Mich. 1931).

141. —Procedure.

A certificate of a competent court that an alien has taken the oath prescribed by the act respecting naturalization raises the presumption that the court was satisfied as to the necessary qualifications of the alien, and such oath confers the rights of a citizen without an order of court. Campbell v. Gordon, 10 U.S. 176, 3 L. Ed. 190, 1810 U.S. LEXIS 325 (1810).

It need not appear by the record of naturalization that all the requisites prescribed by law for the naturalization of aliens have been complied with. Stark v. Chesapeake Ins. Co., 11 U.S. 420, 3 L. Ed. 391, 1813 U.S. LEXIS 438 (1813).

142. —State Courts.

Congress may provide for the naturalization of aliens before state courts, and federal courts may punish persons who commit perjury before state courts in naturalization proceedings. Holmgren v. United States, 217 U.S. 509, 30 S. Ct. 588, 54 L. Ed. 861, 1910 U.S. LEXIS 1979 (1910).

Since congress has exclusive power to regulate naturalization, and in 1906 enacted a statute giving state courts jurisdiction to naturalize aliens, providing for certain fees to the clerk and providing for his retaining a part thereof, the Indiana statute as to his fees was superseded. State ex rel. Marion County Bd. of Comm'rs v. Quill, 53 Ind. App. 495, 102 N.E. 106, 1913 Ind. App. LEXIS 219 (Ind. Ct. App. June 3, 1913).

143. —Bankruptcy.

In the establishment of bankruptcy laws the congress has the power to impair the obligation of contracts, a power expressly withheld from the states by the constitution. Bailey v. CIT, 10 B.R. 567, 1981 Bankr. LEXIS 4026 (Bankr. E.D. Tenn. 1981).

The congressional power to enact laws concerning bankruptcy is read into contracts so that parties to a contract are chargeable with knowledge of existing and future bankruptcy laws. Bailey v. CIT, 10 B.R. 567, 1981 Bankr. LEXIS 4026 (Bankr. E.D. Tenn. 1981).

The U.S. Const. amend. 10 does not forbid the relatively minor impact on the states' powers of taxation which results from congress's decision that the states as creditors are subject to the same bankruptcy regime as all other nonconsensual creditors making claims upon a bankruptcy estate. Bondholder Comm. v. Williamson County (In re Brentwood Outpatient), 43 F.3d 256, 1994 FED App. 408P, 1994 U.S. App. LEXIS 34610 (6th Cir. Tenn. 1994), cert. denied, 514 U.S. 1096, 115 S. Ct. 1824, 131 L. Ed. 2d 745, 1995 U.S. LEXIS 3081 (1995).

The power granted by the bankruptcy clause, U.S. Const. art. 1, § 8, cl. 4, appears to be more plenary in nature than the Indian commerce clause or the interstate commerce clause, both in U.S. Const. art. 1, § 8, cl. 3. Arnold v. Sallie Mae Servicing Corp. (In re Arnold), 255 B.R. 845, 2000 Bankr. LEXIS 1508 (Bankr. W.D. Tenn. 2000).

144. — —Constitutionality.

The Bankruptcy Act of 1898 is not invalid for providing that others than traders may be adjudged bankrupt on voluntary petition. Hanover Nat'l Bank v. Moyses, 186 U.S. 181, 22 S. Ct. 857, 46 L. Ed. 1113, 1902 U.S. LEXIS 885 (1902).

The federal Bankruptcy Act (Mason's U.S. Code, title 11; U.S.C., Title 11; F.C.A., title 11) is not unconstitutional because its operation is not alike in all the states, due to the recognition and enforcement of the laws of the states affecting dower, exemptions, the validity of mortgages, priorities of payment and the like. Stellwagen v. Clum, 245 U.S. 605, 38 S. Ct. 215, 62 L. Ed. 507, 1918 U.S. LEXIS 2095 (1918).

The bankruptcy code's nondischargeability provision, 11 U.S.C. § 523(a)(8), relating to student loans, as that section relates to the code's statutory grounds for the court to issue an enforceable money judgment against a governmental unit, 11 U.S.C. § 106(a), is a constitutionally valid and appropriate abrogation of the states' sovereign immunity under U.S. Const. amend. 11. Lees v. Tennessee Student Assistance Corp., 252 B.R. 441, 2000 Bankr. LEXIS 974 (Bankr. W.D. Tenn. 2000).

Tennessee student assistance corporation (TSAC) failed to establish that congress acted in an arbitrary and irrational way when it enacted the bankruptcy code's sections abrogating the state's sovereign immunity; therefore, the requirements were met to abrogate TSAC's sovereign immunity under U.S. Const. amend. 11, and the debtor's complaint against TSAC was allowed to proceed to a full trial on the merits to determine whether the student loan debts in question actually were subject to a bankruptcy discharge. Lees v. Tennessee Student Assistance Corp., 252 B.R. 441, 2000 Bankr. LEXIS 974 (Bankr. W.D. Tenn. 2000).

145. — —Supremacy.

The federal bankruptcy power is unrestricted and paramount. In re Nashville White Trucks, Inc., 22 B.R. 578, 1982 Bankr. LEXIS 3641 (Bankr. M.D. Tenn. 1982).

146. — —Uniformity.

The requisite of uniformity in bankruptcy laws is not violated by granting the bankrupt the exemption he is entitled to under his state laws at the time. Hanover Nat'l Bank v. Moyses, 186 U.S. 181, 22 S. Ct. 857, 46 L. Ed. 1113, 1902 U.S. LEXIS 885 (1902).

147. — —Jurisdiction.

Under U.S. Const. art. 1, § 8, a bankruptcy court has priority in rights as to bankruptcy rights over state court, even though the state court acquired jurisdiction earlier in time. In re Moore, 42 F.2d 475, 1930 U.S. Dist. LEXIS 1161 (N.D. Ga. 1930).

The federal government, under U.S. Const. art. 1, § 8, possesses supreme power in respect to bankruptcies, and if a state desires to share in assets of a bankrupt, it must submit to appropriate requirements by the controlling power, the same as other creditors. New York v. Irving Trust Co., 288 U.S. 329, 53 S. Ct. 389, 77 L. Ed. 815, 1933 U.S. LEXIS 988 (1933).

148. — —Effect on State Laws.

A bankruptcy act passed by congress pursuant to U.S. Const. art. 1, § 8, cl. 4, suspends the operation of state insolvency laws. Hudson v. Bigham, 59 Tenn. 58, 1873 Tenn. LEXIS 28 (1873).

State bankruptcy laws conflicting with federal bankruptcy laws are suspended only to the extent of the conflict. Stellwagen v. Clum, 245 U.S. 605, 38 S. Ct. 215, 62 L. Ed. 507, 1918 U.S. LEXIS 2095 (1918).

Not only are those state laws which purport to cover the whole field of insolvency administration superseded by the National Bankruptcy Act, but all other state laws to the extent that they hamper or restrict its operation; so, a state cannot by receivership proceedings dissolve a corporation, and thereby deprive federal courts of jurisdiction in bankruptcy proceedings subsequently begun. Hammond v. Lyon Realty Co., 59 F.2d 592, 1932 U.S. App. LEXIS 3419 (4th Cir. 1932).

Federal bankruptcy process is not subject to the sovereignty of the states, and state sovereignty is ultimately inconsistent with the authority of congress to establish uniform laws on bankruptcy. Hood v. Tennessee Student Assistance Corp., 2001 FED App. 6A, 262 B.R. 412, 2001 Bankr. LEXIS 504 (6th Cir. BAP 2001), aff'd, 319 F.3d 755, 2003 FED App. 38P, 2003 U.S. App. LEXIS 1755 (6th Cir. 2003).

149. Clause 5.

150. —Coinage.

The power to coin money and to regulate its value is a prerogative of sovereignty vested exclusively in congress. Ling Su Fan v. United States, 218 U.S. 302, 31 S. Ct. 21, 54 L. Ed. 1049, 1910 U.S. LEXIS 2026 (1910).

Under U.S. Const. art. 1, § 8, cl. 6, specifically authorizing congress to provide for punishment for counterfeiting, U.S. Const. art. 1, § 8, cl. 5 is broader, since it authorizes appropriate measures, including the imposition of criminal penalties, to maintain the coinage in its purity, and congress may, therefore, punish the unlawful possession of dies for counterfeiting, although defendant has not made any counterfeit money. Baender v. Barnett, 255 U.S. 224, 41 S. Ct. 271, 65 L. Ed. 597, 1921 U.S. LEXIS 1815 (1921).

151. —Legal Tender.

Act of congress declaring United States treasury notes a legal tender in payment of debts is a valid and binding law. Johnson v. Ivey, 44 Tenn. 608, 1867 Tenn. LEXIS 79 (1867).

152. —Weights and Measures.

Under the police power, the states may legislate as to weights of various articles frequently sold, at least in the absence of any legislation by congress under U.S. Const. art. 1, § 8. House v. Mayes, 219 U.S. 270, 31 S. Ct. 234, 55 L. Ed. 213, 1911 U.S. LEXIS 1635 (1911); Dwight & Lloyd Sintering Co. v. American Ore Reclamation Co., 263 F. 315, 1920 U.S. App. LEXIS 2015 (2d Cir. 1920), cert. denied, 252 U.S. 582, 40 S. Ct. 393, 64 L. Ed. 727, 1920 U.S. LEXIS 1589 (1920).

Federal Standard Time Act of August 20, 1919 was not in conflict with state daylight saving law. Massachusetts State Grange v. Benton, 10 F.2d 515, 1925 U.S. Dist. LEXIS 1432 (D. Mass. 1925), aff'd, 272 U.S. 525, 47 S. Ct. 189, 71 L. Ed. 387, 1926 U.S. LEXIS 19 (1926).

153. Clause 6.

154. —Federal Jurisdiction.

Congress may provide for the punishment of persons who bring into the United States counterfeit coin of the United States with intent to pass the same, and also for the uttering and publishing of such coin. United States v. Marigold, 50 U.S. 560, 13 L. Ed. 257, 1850 U.S. LEXIS 1443 (1850).

The power of congress to impose penalties to safeguard the public against debased coin is not limited by the clause relating to counterfeiting, but broader powers are given under the clause providing for the coinage of money. Baender v. Barnett, 255 U.S. 224, 41 S. Ct. 271, 65 L. Ed. 597, 1921 U.S. LEXIS 1815 (1921).

The conscious and willing possession, without lawful authority, of a die in the likeness or similitude of one used or designated for making genuine coin of the United States may be made a criminal offense. Baender v. Barnett, 255 U.S. 224, 41 S. Ct. 271, 65 L. Ed. 597, 1921 U.S. LEXIS 1815 (1921).

155. —State Jurisdiction.

States may enact laws providing for the punishment of persons who circulate counterfeit coin of the United States. Fox v. Ohio, 46 U.S. 410, 12 L. Ed. 213, 1847 U.S. LEXIS 320 (1847).

Although the offense of counterfeiting the coin of the United States or of passing or keeping it with the intent to circulate it is an offense against the United States punishable in federal courts, such offense is not exclusively cognizable in those courts. States may punish such offenders within their borders. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859).

156. Clause 7.

157. —Construction.

“Post routes” means the same as “post road.” New England Tel. Co. v. Essex, 206 F. 926, 1913 U.S. Dist. LEXIS 1502 (D. Mass. 1913), modified, 239 U.S. 313, 36 S. Ct. 102, 60 L. Ed. 301, 1916 U.S. LEXIS 1526 (1916).

158. —Control of Mail.

Federal act to protect letters from the time of mailing until actual manual delivery to the party addressed or his authorized agent was within the constitutional power of congress to enact, and protected letter left by carrier in hall of residence of addressee. United States v. McCready, 11 F. 225, 1882 U.S. App. LEXIS 2387 (C.C.W.D. Tenn. 1882).

Congress has power to obtain land within states for post offices, and, by consent of the states, to exercise exclusive legislative powers over the same. Battle v. United States, 209 U.S. 36, 28 S. Ct. 422, 52 L. Ed. 670, 1908 U.S. LEXIS 1749 (1908).

The power given congress to establish post office and post roads does not prevent states from regulating the crews on railroad trains carrying the mails. Pittsburgh C., C. & St. L. Ry. v. State, 172 Ind. 147, 87 N.E. 1034, 1909 Ind. LEXIS 19 (1909), aff'd, Pittsburgh, C. C. & S. L. R. Co. v. Indiana, 223 U.S. 713, 32 S. Ct. 520, 56 L. Ed. 626, 1911 U.S. LEXIS 1815 (1911).

Exercise of postal power cannot contravene First and Fourth Amendments. In re Am. States Pub. Serv. Co., 12 F. Supp. 667, 1935 U.S. Dist. LEXIS 1196, 4 Ohio Op. 200 (D. Md. 1935), appeal dismissed, Burco, Inc. v. Whitworth, 81 F.2d 721, 1936 U.S. App. LEXIS 3534 (4th Cir. Md. 1936).

159. —Designation of Mailable Matter.

Congress has power to designate what articles may be carried in the mails. Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877, 1877 U.S. LEXIS 1718 (1877); In re Rapier, 143 U.S. 110, 12 S. Ct. 374, 36 L. Ed. 93, 1892 U.S. LEXIS 2013 (U.S. 1892).

Congress may prohibit the sending of matter relating to lotteries through the mails. In re Rapier, 143 U.S. 110, 12 S. Ct. 374, 36 L. Ed. 93, 1892 U.S. LEXIS 2013 (U.S. 1892).

That part of the Post Office Appropriation Act of August 24, 1912 (former Mason's U.S. Code, title 39, § 233; U.S.C., Title 39, § 233; F.C.A., title 39, § 233, now 39 U.S.C. § 3685), requiring publication of sworn statement of average circulation, and of names of editor, publisher, owners, stockholders, principal creditors, and the marking of all paid reading matter “advertisement,” under penalty of criminal prosecution for noncompliance, is supplemental to existing laws and imposes additional conditions for admission to the mail, and does not regulate the press or curtail its freedom. Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S. Ct. 867, 57 L. Ed. 1190, 1913 U.S. LEXIS 2444 (1913).

160. —Compensation.

Since, under U.S. Const. art. 1, § 8, congress is authorized to aid post roads, and railroads have been declared to be post roads, congress had authority to create a revolving fund for aid to railroads upon their being returned to their owners after World War I, as part compensation for their use. Dayton-Goose Creek Ry. v. United States, 287 F. 728, 1923 U.S. Dist. LEXIS 1751, 33 A.L.R. 472 (E.D. Tex. 1923), aff'd, Dayton-Goose C. R. Co. v. United States, 263 U.S. 456, 44 S. Ct. 169, 68 L. Ed. 388, 1924 U.S. LEXIS 2810, 33 A.L.R. 472 (1924).

161. —Taxation.

The imposition of a privilege tax on the storage and distribution of gasoline shipped into the state is not invalid as applied to sales of gasoline to airplanes carrying the United States mails. American Airways, Inc. v. Wallace, 57 F.2d 877, 1932 U.S. Dist. LEXIS 1156 (M.D. Tenn. 1932), aff'd, American Airways v. Wallace, 287 U.S. 565, 53 S. Ct. 15, 77 L. Ed. 498, 1932 U.S. LEXIS 40 (1932), aff'd, S. A. Woods Mach. Co. v. Commissioner, 53 S. Ct. 15, 287 U.S. 613, 77 L. Ed. 532, 1932 U.S. LEXIS 190 (1932).

Indiana excise tax upon intangibles applicable to postal saving certificates is not invalid as violating this provision. Lutz v. Arnold, 208 Ind. 480, 193 N.E. 840, 1935 Ind. LEXIS 162 (1935).

162. Clause 8.

163. —In General.

Congress under U.S. Const. art. 1, § 8, cl. 8, is given sole and exclusive power over patents and copyrights, which rights are purely statutory. Wheaton v. Peters, 33 U.S. 591, 8 L. Ed. 1055, 1834 U.S. LEXIS 619 (1834); Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425, 1888 U.S. LEXIS 2216, 6 Ohio F. Dec. 216 (1888); Owen v. Heimann, 12 F.2d 173, 1926 U.S. App. LEXIS 3184 (D.C. Cir.), cert. denied, 271 U.S. 685, 46 S. Ct. 637, 70 L. Ed. 1151, 1926 U.S. LEXIS 814 (1926).

164. —Patents.

Actual invention or discovery is necessary to entitle a person to protection by a patent. Dunbar v. Myers, 94 U.S. 187, 24 L. Ed. 34, 1876 U.S. LEXIS 1848 (1876); Thompson v. Boisselier, 114 U.S. 1, 5 S. Ct. 1042, 29 L. Ed. 76, 1885 U.S. LEXIS 1731 (1885); Hill v. Wooster, 132 U.S. 693, 10 S. Ct. 228, 33 L. Ed. 502, 1890 U.S. LEXIS 1885 (1890).

The use of an old machine for a new purpose is not a new invention, and is not patentable. Ansonia Brass & Copper Co. v. Electrical Supply Co., 144 U.S. 11, 12 S. Ct. 601, 36 L. Ed. 327, 1892 U.S. LEXIS 2048 (U.S. Mar. 14, 1892).

Patents may embrace more than one invention, and they may embrace a process and the apparatus by which it is performed. Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U.S. 301, 29 S. Ct. 495, 53 L. Ed. 805, 1909 U.S. LEXIS 1876 (1909).

Separate claims in the same patent are independent inventions, and the infringement of one is not an infringement of others. Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U.S. 301, 29 S. Ct. 495, 53 L. Ed. 805, 1909 U.S. LEXIS 1876 (1909).

A new combination of elements, though old in themselves, which produces a new and useful result, entitles the inventor to the protection of a patent. Expanded Metal Co. v. Bradford, 214 U.S. 366, 29 S. Ct. 652, 53 L. Ed. 1034, 1909 U.S. LEXIS 1925 (1909).

165. — —Regulation by States.

States may regulate the sale of articles that are patented under the laws of the United States. Patterson v. Kentucky, 97 U.S. 501, 24 L. Ed. 1115, 1878 U.S. LEXIS 1479 (1878); Brechbill v. Randall, 102 Ind. 528, 1 N.E. 362, 1885 Ind. LEXIS 90, 52 Am. Rep. 695 (1885).

Right of patentee to sell or assign privilege granted to him by the United States for the period fixed in his letters patent is beyond state regulation. State act requiring license in order to sell the patent is violative of U.S. Const. art. 1, § 8, cl. 8 and the federal laws, enacted under that clause, regulating issuance and enjoyment of patent. State v. Butler, 71 Tenn. 222, 1879 Tenn. LEXIS 65 (1879).

The statute of Indiana requiring notes given for the purchase money of patent rights to contain the words, “given for a patent right,” is valid. New v. Walker, 108 Ind. 365, 9 N.E. 386, 1886 Ind. LEXIS 242, 58 Am. Rep. 40 (1886); Hankey v. Downey, 116 Ind. 118, 18 N.E. 271, 1888 Ind. LEXIS 102, 1 L.R.A. 447 (1888).

State act making nonnegotiable note for purchase of patent, showing on its face that it is for such purchase and supplemental act penalizing seller's failure to have such note show on its face the consideration for which it is given do not violate U.S. Const. art. 1, § 8, cl. 8, since the right of the true owner to sell legally any patent or interest therein is not restricted or impaired thereby. State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903).

166. —Copyrights.

Assignment of matter that is subject to copyright when the assignor is not a citizen of the United States. Construction of United States statutes on the subject and when the assignee may obtain a copyright. Bong v. Alfred S. Campbell Art Co., 214 U.S. 236, 29 S. Ct. 628, 53 L. Ed. 979, 1909 U.S. LEXIS 1912 (1909).

The United States laws do not provide for amending copyright applications, and when an application is filed, a copyright cannot be granted upon a subsequent application. Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 30 S. Ct. 38, 54 L. Ed. 150, 1909 U.S. LEXIS 1745 (1909).

Copyright property under the federal law is wholly statutory and depends upon rights created by acts of congress passed in pursuance of the authority of U.S. Const. art. 1, § 8, cl. 8. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 59 F.2d 70, 1932 U.S. App. LEXIS 3314 (1st Cir. 1932).

167. — —Subjects of Copyright.

There can be no copyright of the opinions of judges published in reports under authority of law, but an official reporter may obtain a copyright for a volume of such reports which will cover the matter which is the result of his intellectual labor. Callaghan v. Myers, 128 U.S. 617, 9 S. Ct. 177, 32 L. Ed. 547, 1888 U.S. LEXIS 2260 (1888).

If the contents of a book are published, with the consent of the author, in a serial form in a magazine without being copyrighted, the author loses the right to obtain afterwards a copyright on a book containing the same matter. Holmes v. Hurst, 174 U.S. 82, 19 S. Ct. 606, 43 L. Ed. 904, 1899 U.S. LEXIS 1484 (1899); Mifflin v. R.H. White Co., 190 U.S. 260, 23 S. Ct. 769, 47 L. Ed. 1040, 1903 U.S. LEXIS 1548 (1903), superseded by statute as stated in, Abend v. MCA, Inc., 863 F.2d 1465, 1988 U.S. App. LEXIS 17515 (9th Cir. Cal. 1988) (decided under prior law).

If a monthly magazine is copyrighted by its name by the proprietors thereof, such copyright will not protect the authors of serial articles under distinct names which appear in the magazine. Mifflin v. R.H. White Co., 190 U.S. 260, 23 S. Ct. 769, 47 L. Ed. 1040, 1903 U.S. LEXIS 1548 (1903), superseded by statute as stated in, Abend v. MCA, Inc., 863 F.2d 1465, 1988 U.S. App. LEXIS 17515 (9th Cir. Cal. 1988); Mifflin v. Dutton, 190 U.S. 265, 23 S. Ct. 771, 47 L. Ed. 1043, 1903 U.S. LEXIS 1392 (1903) (decided under prior law).

Pictures and prints can be copyrighted, although intended and used only for advertisements, without regard to artistic merit. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S. Ct. 298, 47 L. Ed. 460, 1903 U.S. LEXIS 1278 (1903); Ansehl v. Puritan Pharmaceutical Co., 61 F.2d 131, 1932 U.S. App. LEXIS 4210 (8th Cir. 1932), cert. denied, 287 U.S. 666, 53 S. Ct. 224, 77 L. Ed. 574, 1932 U.S. LEXIS 405 (1932).

The taking and exhibiting of moving pictures, so as to present scenes and characters portrayed in a copyrighted book, is an infringement of the rights of the author of the book. Kalem Co. v. Harper Bros., 222 U.S. 55, 32 S. Ct. 20, 56 L. Ed. 92, 1911 U.S. LEXIS 1856 (1911).

168. — —Notice.

The Copyright Act of 1874 (former Mason's U.S. Code, title 17, § 19; U.S.C., title 17, § 19; F.C.A., title 17, § 19), requiring that notice shall be inserted in the several copies of every edition, does not extend to publications abroad and sold only for use there. United Dictionary Co. v. G. & C. Merriam Co., 208 U.S. 260, 28 S. Ct. 290, 52 L. Ed. 478, 1908 U.S. LEXIS 1439 (1908).

The owner of the copyright of a book cannot, by notice given to purchasers at wholesale of the book, limit the price at which such purchasers may sell the book at retail. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 1908 U.S. LEXIS 1513 (1908).

169. — —Actions.

If copyrights in maps are infringed, an action at common law for damages will not lie, but the special remedy provided by the copyright law must be pursued. Globe Newspaper Co. v. Walker, 210 U.S. 356, 28 S. Ct. 726, 52 L. Ed. 1096, 1908 U.S. LEXIS 1515 (1908).

170. — —Taxation.

Copyrights are not instrumentalities of the federal government, although created by it, and may be taxed by the state. Fox Film Corp. v. Doyal, 286 U.S. 123, 52 S. Ct. 546, 76 L. Ed. 1010, 1932 U.S. LEXIS 795 (1932).

171. —Trademarks.

Trademarks are neither an invention, a discovery, nor a writing within the meaning of U.S. Const. art. 1, § 8, cl. 8, and congress has no power under this clause to protect the same by legislation. Trade-Mark Cases, 100 U.S. 82, 25 L. Ed. 550, 1879 U.S. LEXIS 1808 (Tenn. Nov. 17, 1879).

The power of congress over trademarks is dependent on U.S. Const. art. 1, § 8, cl. 3. Ironite Co. v. Guarantee Waterproofing Co., 64 F.2d 608, 1933 U.S. App. LEXIS 4169 (8th Cir. 1933).

172. Clause 9.

The United States constitution confers the power to create jurisdiction exclusively upon congress. In re Conley, 26 B.R. 885, 1983 Bankr. LEXIS 6961 (Bankr. M.D. Tenn. 1983).

173. —Inferior Courts.

Congress has duty to create some inferior courts in which to vest the jurisdiction not given originally to the supreme court. Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (U.S. Mar. 20, 1816).

Legislation is necessary to confer jurisdiction in criminal cases. United States v. Wiltberger, 18 U.S. 76, 5 L. Ed. 37, 1820 U.S. LEXIS 245 (1820).

Where the constitution has not enumerated jurisdiction and powers of courts, congress has discretion to distribute them as it sees fit. Osborn v. President, Dirs. & Co. of Bank, 22 U.S. 738, 6 L. Ed. 204, 1824 U.S. LEXIS 409 (1824).

The inferior courts, referred to in U.S. Const. art. 1, § 8, are not state courts and their jurisdiction cannot be limited by state laws. Southern Pac. Co. v. Denton, 146 U.S. 202, 13 S. Ct. 44, 36 L. Ed. 942, 1892 U.S. LEXIS 2189 (U.S. Nov. 21, 1892).

Under its war powers and its power to establish inferior courts congress has authority to create courts-martial with jurisdiction to try persons for fraudulent enlistment. Ex parte Foley, 243 F. 470, 1917 U.S. Dist. LEXIS 1140 (W.D. Ky. 1917).

174. Clause 10.

175. —Construction.

The power of congress over maritime law arises from U.S. Const. art. 1, § 8, cls. 10, 11, and 18, and from U.S. Const. art. 3, § 2, rather than from the commerce clause of U.S. Const. art. 1, § 8, cl. 3. Stoffel v. W.J. McCahan Sugar Ref. & Molasses Co., 35 F.2d 602, 1929 U.S. Dist. LEXIS 1619 (E.D. Pa. 1929), aff'd, 41 F.2d 651, 1930 U.S. App. LEXIS 2869 (3d Cir. 1930).

The term “high seas” includes waters on the seacoast without the boundaries of low-water mark. Murray v. Hildreth, 61 F.2d 483, 1932 U.S. App. LEXIS 4309 (5th Cir. 1932).

This provision, authorizing congress to define and punish felonies committed on the high seas, is not a limitation on U.S. Const. art. 3, § 2, that the judicial power shall extend to all cases of admiralty and maritime jurisdiction; therefore, an act defining murder when within the admiralty and maritime jurisdiction of the United States is valid, even though applying to cases not committed on the high seas, but on a foreign river. United States v. Flores, 289 U.S. 137, 53 S. Ct. 580, 77 L. Ed. 1086, 1933 U.S. LEXIS 172 (1933).

176. Clause 11.

177. —Power to Declare War.

Congress alone has power to declare war, and the president has no power to declare war or conclude a peace, except as empowered by congress. Perkins v. Rogers, 35 Ind. 124, 1871 Ind. LEXIS 27, 9 Am. Rep. 639 (1871).

This power to declare war necessarily connotes the plenary power to wage war with all the force necessary to make it effective and without regard to the conscientious or religious views of the individual citizen. United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L. Ed. 1302, 1931 U.S. LEXIS 170 (1931).

178. —Limitation on War Power.

Congress cannot declare war against a state or any number of states. The Brig Amy Warwick, 67 U.S. 635, 17 L. Ed. 459, 1862 U.S. LEXIS 282 (1862).

U.S. Const. amends. 5 and 6 do not restrict the war powers of congress. Chemical Found., Inc. v. E.I. Du Pont de Nemours & Co., 29 F.2d 597, 1928 U.S. Dist. LEXIS 1620 (D. Del. 1928), aff'd, 39 F.2d 366, 1930 U.S. App. LEXIS 4059 (3d Cir. Del. 1930).

The protection of U.S. Const. amend. 4 has not been suspended by the war, but it extends to persons accused of war time crimes as well as others. United States v. Coffman, 50 F. Supp. 823, 1943 U.S. Dist. LEXIS 2504 (S.D. Cal. 1943).

U.S. Const. amend. 13 was never intended to limit the war powers of the government or its right to exact by law public service from all to meet the public need. Heflin v. Sanford, 142 F.2d 798, 1944 U.S. App. LEXIS 3514 (5th Cir. May 26, 1944).

Neither expressly or impliedly was the war power abrogated or limited by U.S. Const. amend. 21. Jatros v. Bowles, 143 F.2d 453, 1944 U.S. App. LEXIS 3108 (6th Cir. 1944).

While the war power is subject to the limitations of U.S. Const. amend. 5, the courts must guard against impairing its essential attributes or endangering the ability of the nation to maintain its defense and security and its status as a free and independent state. Porter v. Shibe, 158 F.2d 68, 1946 U.S. App. LEXIS 2329 (10th Cir. 1946).

179. Clause 12.

180. —Power to Raise Armies.

In supplying the power to congress to raise an army, it was intended to give all to it and leave none to the states. Selective Draft Law Cases, 245 U.S. 366, 38 S. Ct. 159, 62 L. Ed. 349, 1918 U.S. LEXIS 2138, 1918C L.R.A. 361, 1918B Ann. Cas. 856 (1918).

The power to raise armies gives congress absolute power to say who shall serve and in what way in case of war. United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L. Ed. 1302, 1931 U.S. LEXIS 170 (1931); United States v. Bland, 283 U.S. 636, 51 S. Ct. 569, 75 L. Ed. 1319, 1931 U.S. LEXIS 171 (1931), overruled, Girouard v. United States, 328 U.S. 61, 66 S. Ct. 826, 90 L. Ed. 1084, 1946 U.S. LEXIS 2499 (1946).

181. —Draft Acts.

The Selective Training and Service Act of 1940 is constitutional. United States v. Herling, 120 F.2d 236, 1941 U.S. App. LEXIS 3461 (2d Cir. 1941); United States v. Lambert, 123 F.2d 395, 1941 U.S. App. LEXIS 2720 (3d Cir. 1941); Tatum v. United States, 146 F.2d 406, 1944 U.S. App. LEXIS 2308 (9th Cir. 1944).

The Draft Act of 1948 is constitutional even though enacted in peace time. United States v. Henderson, 180 F.2d 711, 1950 U.S. App. LEXIS 2484 (7th Cir. 1950), cert. denied, 339 U.S. 963, 70 S. Ct. 997, 94 L. Ed. 1372, 1950 U.S. LEXIS 1939 (1950).

182. —Military Law.

The provision by congress that military prisoners be subject to military law and tried by a military court is not inconsistent with the guaranties as to jury trial and presentment of indictment by grand jury. Kahn v. Anderson, 255 U.S. 1, 41 S. Ct. 224, 65 L. Ed. 469, 1921 U.S. LEXIS 1834 (1921).

Under U.S. Const. art. 1, § 8, cls. 11, 12, 14 and 18, congress has power to provide for courts-martial, which form no part of the judicial system of the United States, and the proceedings in which, if within their jurisdiction, the civil courts cannot alter, revise, or control. United States ex rel. Wessels v. McDonald, 265 F. 754, 1920 U.S. Dist. LEXIS 1149 (E.D.N.Y. 1920), appeal dismissed, 256 U.S. 705, 41 S. Ct. 535, 65 L. Ed. 1180, 1921 U.S. LEXIS 1659 (1921).

183. Clause 13.

184. —Power to Provide Navy.

U.S. Const. art. 1, § 8, cl. 13 authorizes congress to buy or build vessels of war, to arm, man, and equip them, to establish naval academies, and to make all proper rules to govern the navy. United States v. Bevans, 16 U.S. 336, 4 L. Ed. 404, 1818 U.S. LEXIS 364 (1818); Dynes v. Hoover, 61 U.S. 65, 15 L. Ed. 838, 1857 U.S. LEXIS 432 (1857); Smith v. Whitney, 116 U.S. 167, 6 S. Ct. 570, 29 L. Ed. 601, 1886 U.S. LEXIS 1748 (1886).

185. Clause 14.

186. —Regulations.

Congress may repeal, modify, or create new rules and regulations pertaining to the land and naval forces, and may delegate this power to the military departments. United States v. Eliason, 41 U.S. 291, 10 L. Ed. 968, 1842 U.S. LEXIS 370 (1842); Ex parte Reed, 100 U.S. 13, 25 L. Ed. 538, 1879 U.S. LEXIS 1796 (Tenn. Nov. 10, 1879).

187. —Court-Martial Proceedings.

An act of congress providing for the trial by court-martial of crimes committed by persons in the military service in time of war does not oust the state of jurisdiction to try and punish for the same act when it constitutes an offense under state law. State v. Rankin, 44 Tenn. 145, 1867 Tenn. LEXIS 24 (1867).

The civil courts, in habeas corpus actions on imprisonment under conviction by a military tribunal, can consider only whether the court-martial had jurisdiction. Swaim v. United States, 165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823, 1897 U.S. LEXIS 1996 (1897); Carter v. Roberts, 177 U.S. 496, 20 S. Ct. 713, 44 L. Ed. 861, 1900 U.S. LEXIS 1818 (1900).

Under U.S. Const. art. 1, § 8, cl. 14, a court-martial had jurisdiction of charge of rape against seamen in the navy, and congress had power to provide for such trial without a jury. The constitutional right to jury trial does not apply to courts-martial. In re Waidman, 42 F.2d 239, 1930 U.S. Dist. LEXIS 1129 (D. Me. 1930).

188. Clause 15.

189. —Construction.

U.S. Const. art. 1, § 8, cl. 15 does not restrict or qualify the power to require involuntary military service beyond the territorial limits of the United States. Cox v. Wood, 247 U.S. 3, 38 S. Ct. 421, 62 L. Ed. 947, 1918 U.S. LEXIS 1985 (1918).

190. —Period of Enlistment.

Members of Massachusetts militia who did not sign new enlistment contracts could be called into active service to repel invasion or put down insurrection during the remaining period of enlistment. Sweetser v. Emerson, 236 F. 161, 1916 U.S. App. LEXIS 2261 (1st Cir. 1916), cert. dismissed, 243 U.S. 660, 37 S. Ct. 476, 61 L. Ed. 950, 1917 U.S. LEXIS 2030 (1917).

191. Clause 16.

192. —Federal Aid.

Congress has authority to determine the aid which shall be given the national guard of the various states and the terms upon which it shall be granted. United States ex rel. Gillett v. Dern, 74 F.2d 485, 1934 U.S. App. LEXIS 4000 (D.C. Cir. 1934).

193. —Power of the State.

U.S. Const. art. 1, § 8, cl. 16 puts no restriction on the states with respect to concurrent legislation concerning the militia, although militia when it has entered the government service is under the exclusive control of the government. Houston v. Moore, 18 U.S. 1, 5 L. Ed. 19, 1820 U.S. LEXIS 244 (1820).

So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government, the state is sole judge of the means to be employed and the amount of military training to be exacted from its citizens. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245, 55 S. Ct. 197, 79 L. Ed. 343, 1934 U.S. LEXIS 26 (1934), rehearing denied, 293 U.S. 633, 55 S. Ct. 345, 79 L. Ed. 717, 1935 U.S. LEXIS 31 (1934).

194. Clause 17.

195. —Construction.

Power of federal government to purchase a place for a soldiers' home was within the intent and meaning of U.S. Const. art. 1, § 8, cl. 17, and falls directly under the words “other needful buildings.” State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299, 1906 Tenn. LEXIS 51 (1906).

196. —Jurisdiction.

States may cede to the United States jurisdiction over a portion of their territories, and the courts of the United States have jurisdiction of crimes committed within the limits of the territory ceded. Benson v. United States, 146 U.S. 325, 13 S. Ct. 60, 36 L. Ed. 991, 1892 U.S. LEXIS 2200 (U.S. Dec. 5, 1892); Battle v. United States, 209 U.S. 36, 28 S. Ct. 422, 52 L. Ed. 670, 1908 U.S. LEXIS 1749 (1908).

Congress was given exclusive jurisdiction over all places purchased by the United States by the consent of the legislature of the state in which the same should be. Hawke v. Smith, 253 U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871, 1920 U.S. LEXIS 1416, 10 A.L.R. 1504 (1920).

When the United States acquires title to lands purchased with the consent of the legislature of the state in which they are situated, under U.S. Const. art. 1, § 8, cl. 17, the federal jurisdiction is exclusive of all state authority; but when state cedes jurisdiction over public lands to the United States, it may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition. United States v. Unzeuta, 281 U.S. 138, 50 S. Ct. 284, 74 L. Ed. 761, 1930 U.S. LEXIS 372 (1930).

Where land is acquired by the United States for a purpose not enumerated in U.S. Const. art. 1, § 8, cl. 17, the state may be able to reserve such jurisdiction and powers as it sees fit, not inconsistent with the effective use of the land for the purposes intended. State v. Oliver, 162 Tenn. 100, 35 S.W.2d 396, 1930 Tenn. LEXIS 68 (1931).

197. — —Civil and Criminal Process.

Where land within a state is acquired by the United States with the consent of a state, under U.S. Const. art. 1, § 8, cl. 17, the jurisdiction of the United States is complete and exclusive, and the reservation contained in the grants that the state may serve civil and criminal process within the ceded territory is limited to causes of action arising outside the territory. But where the United States has not provided legislation for the territory so acquired, the state laws continue in force so far as needed to protect and enforce rights of residents therein and are enforceable in state courts. Divine v. Unaka Nat'l Bank, 125 Tenn. 98, 140 S.W. 747, 1911 Tenn. LEXIS 9, 36 L.R.A. (n.s.) 586 (1911).

Reservation by state of right to serve criminal or civil process within territory ceded by it to United States for national park is valid. State v. Oliver, 162 Tenn. 100, 35 S.W.2d 396, 1930 Tenn. LEXIS 68 (1931).

198. — —Criminal Offenses.

The state has power to punish perjury committed in a trial in a state court, although the trial was held, by permission of the federal government, in a customhouse situated on land ceded by the state to the general government under the authority granted by U.S. Const. art. 1, § 8, cl. 17. Exum v. State, 90 Tenn. 501, 17 S.W. 107, 1891 Tenn. LEXIS 32, 25 Am. St. Rep. 700, 15 L.R.A. 381 (1891).

State court had jurisdiction of criminal offense committed on land purchased and used by United States for war munitions plant without consent of state legislature. Gill v. State, 141 Tenn. 379, 210 S.W. 637, 1918 Tenn. LEXIS 99 (1919).

Under U.S. Const. art. 1, § 8, cl. 17, a murder committed on a freight train on a right-of-way across a military reservation was exclusively in the jurisdiction of the United States, where the state in ceding the lands had not reserved such jurisdiction. United States v. Unzeuta, 281 U.S. 138, 50 S. Ct. 284, 74 L. Ed. 761, 1930 U.S. LEXIS 372 (1930).

199. — —Personal Injuries.

A state court has jurisdiction of an injury action where the injury was sustained on land over which the federal government had exclusive jurisdiction. Ohio River Contract Co. v. Gordon, 244 U.S. 68, 37 S. Ct. 599, 61 L. Ed. 997, 1917 U.S. LEXIS 1609 (1917).

200. — —Probate Matters.

Where state land is ceded to federal government subject to reservation of right to serve civil and criminal process therein, the state court has probate jurisdiction of estate of inmates of national soldiers' home therein, and administrator appointed by such court may compel delivery to him of decedent's property by officers of the home. Divine v. Unaka Nat'l Bank, 125 Tenn. 98, 140 S.W. 747, 1911 Tenn. LEXIS 9, 36 L.R.A. (n.s.) 586 (1911).

201. — —Taxation.

Personal property, owned by a private corporation, but located on a military reservation, could not be taxed by the state in the absence of a reservation of such right in the cession of said lands to the United States. Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S. Ct. 455, 74 L. Ed. 1091, 1930 U.S. LEXIS 413 (1930).

Imposition of state tax on gross revenue earned by plaintiff in transporting commodities from Memphis to various United States government reservations was not void on the ground that United States government had exclusive jurisdiction where commodities were delivered, since cession by the state was not absolute but modified, as state reserved the right to tax railroads and other corporations having right-of-way or location on land ceded. Motor Transport Co. v. McCanless, 182 Tenn. 659, 189 S.W.2d 200, 1945 Tenn. LEXIS 264 (1945).

Plea of exclusive jurisdiction of the United States over an army air base in order to escape payment of a state privilege tax, if available at all, could be made only by the United States government itself and not the taxpayer. Motor Transport Co. v. McCanless, 182 Tenn. 659, 189 S.W.2d 200, 1945 Tenn. LEXIS 264 (1945).

202. —Manner of Acquisition.

Where the United States merely buys or condemns land in a state for its use, the jurisdiction of the state wherein the land lies remains the same as before except that the state cannot interfere with the full free and perfect use for which it was acquired, or in any way embarrass that use. Divine v. Unaka Nat'l Bank, 125 Tenn. 98, 140 S.W. 747, 1911 Tenn. LEXIS 9, 36 L.R.A. (n.s.) 586 (1911).

The federal government has power to accept lands for national park to be conveyed or ceded by states. Regardless of whether federal government has power of eminent domain, state can exercise such power for park purposes, though object is to transfer land to United States for national park. State v. Oliver, 162 Tenn. 100, 35 S.W.2d 396, 1930 Tenn. LEXIS 68 (1931).

203. —District of Columbia.

In the exercise of legislative powers relative to the District of Columbia, congress is subject to the provisions of U.S. Const. amend. 5. Wight v. Davidson, 181 U.S. 371, 21 S. Ct. 616, 45 L. Ed. 900, 1901 U.S. LEXIS 1369 (1901).

U.S. Const. art. 1, § 8, cl. 4 gives plenary power to congress to legislate for the District of Columbia, on appropriate national matters, and to use for it all powers exercisable by a state in dealing with its affairs, so long as other sections of the constitution are not violated. Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 52 S. Ct. 607, 76 L. Ed. 1204, 1932 U.S. LEXIS 612 (1932).

The equal protection clause of U.S. Const. amend. 14 is directed to the states and does not apply to District of Columbia. Hamilton Nat'l Bank v. District of Columbia, 156 F.2d 843, 1946 U.S. App. LEXIS 3149 (D.C. Cir. 1946).

204. Clause 18.

205. —Doctrine of Implied Powers.

When an act of congress is repugnant to the constitution, it cannot become a law. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803).

All appropriate means plainly adapted to a legitimate end, which are not prohibited by the constitution, may be employed to carry in effect express powers given to the government by the constitution. McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579, 1819 U.S. LEXIS 320 (1819).

No power can be derived by implication from any express power to enact laws as means for carrying the constitution into execution, unless such means are appropriate, plainly adapted, and not inconsistent with the spirit of the constitution or prohibited by its terms. Hepburn v. Griswold, 75 U.S. 603, 19 L. Ed. 513, 1868 U.S. LEXIS 1136 (1868).

The constitution by apt words of designation or general description marks the outlines of the powers granted the national legislature, but it does not undertake with the precision and the detail of a code of laws to enumerate the subdivisions of those powers or to specify all the means by which they may be carried into execution. Legal Tender Case, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

The constitution does not deny to congress the necessary resources of flexibility and practicality which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy as declared by the legislature is to apply. United States v. McDermott, 131 F.2d 313, 1942 U.S. App. LEXIS 4616 (7th Cir. 1942), cert. denied, 318 U.S. 765, 63 S. Ct. 664, 87 L. Ed. 1137, 1943 U.S. LEXIS 962 (1943), rehearing denied, 318 U.S. 801, 63 S. Ct. 827, 87 L. Ed. 1164, 1943 U.S. LEXIS 884 (1943).

206. —Particular Subjects.

207. — —Aliens.

The congress has power to determine the right of foreigners to come into this country, and may exclude or expel the same. The Chinese Exclusion Case, 130 U.S. 581, 9 S. Ct. 623, 32 L. Ed. 1068, 1889 U.S. LEXIS 1778 (1889); Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905, 1893 U.S. LEXIS 2340 (1893).

The act of congress prohibiting the importation of alien laborers under contracts to perform labor is unconstitutional. Lees v. United States, 150 U.S. 476, 14 S. Ct. 163, 37 L. Ed. 1150, 1893 U.S. LEXIS 2398 (1893).

Congress has power to prescribe the conditions upon which aliens may be admitted into the United States, and may provide for deporting persons who have entered into this country contrary to law. United States ex rel. Turner v. Williams, 194 U.S. 279, 24 S. Ct. 719, 48 L. Ed. 979, 1904 U.S. LEXIS 822 (1904).

208. — —Banks.

Congress has power to establish banks. McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579, 1819 U.S. LEXIS 320 (1819).

Congress did not exceed its power in giving authority to federal reserve board to permit national banks to act as trustee, executor, administrator, or registrar of stocks and bonds. First Nat'l Bank v. Fellows ex rel. Union Trust Co., 244 U.S. 416, 37 S. Ct. 734, 61 L. Ed. 1233, 1917 U.S. LEXIS 1654 (1917).

State has no authority to vary the method provided by congress for increase of stock of national banks. Wray v. Citizens' Nat'l Bank, 288 S.W. 171, 1926 Tex. App. LEXIS 1596 (Tex. Com. App. 1926).

Acts 1939, ch. 161 requiring banking institutions to turn over to the state as abandoned property deposits and funds which had remained inactive for a specified period of time was unconstitutional as applied to national banks. American Nat'l Bank v. Clarke, 175 Tenn. 480, 135 S.W.2d 935, 1939 Tenn. LEXIS 65 (1939).

209. — —Commerce.

Congress may prevent navigable waters of the United States from being unreasonably obstructed, and may delegate the necessary powers to officers to prevent or to remove such obstructions. Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S. Ct. 356, 54 L. Ed. 435, 1910 U.S. LEXIS 1884 (1910).

Bills of lading for the movement of interstate commerce are instrumentalities of that commerce which congress has power to deal with. United States v. Ferger, 250 U.S. 199, 39 S. Ct. 445, 63 L. Ed. 936, 1919 U.S. LEXIS 1733 (1919).

The Weeks Act (Mason's U.S. Code, title 16, ch. 12; U.S.C., title 16, ch. 12; F.C.A., title 16, § 12), providing condemnation of land for national forests is not violation of the constitution, since it is an appropriate means to preserve the navigability of rivers, under U.S. Const. art. 1, § 8, cl. 18 and the commerce clause. United States v. Griffin, 58 F.2d 674, 1932 U.S. Dist. LEXIS 1211 (W.D. Va. 1932).

210. — —Courts.

Courts, established by congress, under U.S. Const. art. 1, § 8, cl. 18, to determine matters of executive administration, are legislative courts, and, also, are independent of the judicial power defined in U.S. Const. art. 3, § 2, and the matters before them need not be a case or controversy. Ex parte Bakelite Corp., 279 U.S. 438, 49 S. Ct. 411, 73 L. Ed. 789, 1929 U.S. LEXIS 342 (1929), overruled, Glidden Co. v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459, 8 L. Ed. 2d 671, 1962 U.S. LEXIS 2139 (1962).

211. — —Delegation of Powers.

It is beyond the power of congress to authorize and sanction action by the states in prescribing and enforcing rights, obligations, liabilities, and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 1920 U.S. LEXIS 1457, 11 A.L.R. 1145 (1920), superseded by statute as stated in, Garvin v. Alumax of South Carolina, Inc., 787 F.2d 910, 1986 U.S. App. LEXIS 29852, 1987 A.M.C. 402 (6th Cir. 1986), superseded by statute as stated in, Guilles v. Sea-Land Serv., 820 F. Supp. 744, 1993 U.S. Dist. LEXIS 4881, 1993 A.M.C. 2761 (6th Cir. 1993), superseded by statute as stated in, Guilles v. Sea-Land Serv., 12 F.3d 381, 1993 U.S. App. LEXIS 33646, 1995 A.M.C. 1223 (6th Cir. 1993) .

The provisions of the federal Sentencing Reform Act of 1984 pertaining to the sentencing guidelines are severed from all remaining provisions of the act, which shall remain valid and fully enforceable. United States v. Williams, 691 F. Supp. 36, 1988 U.S. Dist. LEXIS 6006 (M.D. Tenn. 1988), aff'd without opinion, U.S. v. Hayes, 884 F.2d 1393 (6th Cir. Tenn. 1989), aff'd, United States v. Hayes, 884 F.2d 1393, 1989 U.S. App. LEXIS 13929 (6th Cir. Tenn. 1989).

The federal sentencing guidelines promulgated by the sentencing commission are unconstitutional and unenforceable. United States v. Williams, 691 F. Supp. 36, 1988 U.S. Dist. LEXIS 6006 (M.D. Tenn. 1988), aff'd without opinion, U.S. v. Hayes, 884 F.2d 1393 (6th Cir. Tenn. 1989), aff'd, United States v. Hayes, 884 F.2d 1393, 1989 U.S. App. LEXIS 13929 (6th Cir. Tenn. 1989).

The promulgation of sentencing guidelines that are binding on the federal courts is a nondelegable legislative function. United States v. Williams, 691 F. Supp. 36, 1988 U.S. Dist. LEXIS 6006 (M.D. Tenn. 1988), aff'd without opinion, U.S. v. Hayes, 884 F.2d 1393 (6th Cir. Tenn. 1989), aff'd, United States v. Hayes, 884 F.2d 1393, 1989 U.S. App. LEXIS 13929 (6th Cir. Tenn. 1989).

212. — —Federal Farm Loans.

The exemption of the Federal Land Bank securities from federal and state taxation is within the power of congress. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S. Ct. 243, 65 L. Ed. 577, 1921 U.S. LEXIS 1811 (1921).

The Federal Farm Loan Act of July 17, 1916, ch. 245, § 32, as amended by Act of Jan. 18, 1918, ch. 9, § 1 (former Mason's U. S. Code, Title 12, § 991; U.S.C., title 12, § 991; F.C.A., title 12, § 991 [repealed]), is within the creative power of congress, although the banks may be intended, in connection with other privileges and duties, to facilitate the making of loans upon farm security at low rates of interest. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S. Ct. 243, 65 L. Ed. 577, 1921 U.S. LEXIS 1811 (1921).

213. — —Indians.

Congress alone has power to determine the moral obligations of the government towards the Indians, and the courts can only exercise such jurisdiction over the subject as may be conferred by congress. Blackfeather v. United States, 190 U.S. 368, 23 S. Ct. 772, 47 L. Ed. 1099, 1903 U.S. LEXIS 1553 (1903).

Congress has power to prohibit the conveyance of lands set apart to Indians without the consent of the secretary of the interior. Tiger v. Western Inv. Co., 221 U.S. 286, 31 S. Ct. 578, 55 L. Ed. 738, 1911 U.S. LEXIS 1734 (1911).

214. — —Intoxicating Liquor.

The National Prohibition Act of 1919 was within the authority granted congress in U.S. Const. amend. 18 and also by this clause; complete control of intoxicants is reasonably related to the power granted to control intoxicants for beverage purposes. Carnahan v. United States, 35 F.2d 96, 1929 U.S. App. LEXIS 2907, 67 A.L.R. 1035 (8th Cir. 1929), cert. denied, 281 U.S. 723, 50 S. Ct. 238, 74 L. Ed. 1141, 1930 U.S. LEXIS 515 (1930).

215. — —Investigations.

The house of congress, when investigating by committee a merely private matter, cannot imprison a witness for refusing to testify. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

There can be no doubt of the power of congress to obtain information as to legislation which it is authorized to enact, and it may require witnesses to testify for that purpose. McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 1927 U.S. LEXIS 985, 50 A.L.R. 1 (1927); Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692, 1929 U.S. LEXIS 339 (1929), overruled, United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444, 1995 U.S. LEXIS 4068 (1995); United States v. Seymour, 50 F.2d 930, 1931 U.S. Dist. LEXIS 1440 (D. Neb. 1931).

216. — —Maritime Law.

U.S. Const. art. 1, § 8, cl. 18 is one of the sources of the power of congress to control maritime law, along with U.S. Const. art. 1, § 8, cls. 10 and 11, and such power does not come from the commerce clause, found in U.S. Const. art. 1, § 8, cl. 3. Stoffel v. W.J. McCahan Sugar Ref. & Molasses Co., 35 F.2d 602, 1929 U.S. Dist. LEXIS 1619 (E.D. Pa. 1929), aff'd, 41 F.2d 651, 1930 U.S. App. LEXIS 2869 (3d Cir. 1930).

217. —Federal Preemption.

The Tennessee public service commission is preempted by the commerce and supremacy clauses and 49 U.S.C. § 11341(a) from enforcing its nontacking requirement against the merger of motor carriers. Con-way S. Express, Inc. v. Hewlett, 758 F. Supp. 464, 1991 U.S. Dist. LEXIS 3095 (M.D. Tenn. 1991).

218. — —Taxation.

“Activities” which atomic energy commission carries on through its cost reimbursement contractors are exempt from state sale and use taxes. Carbide & Carbon Chems. Corp. v. Carson, 192 Tenn. 150, 239 S.W.2d 27, 1951 Tenn. LEXIS 392 (1951), aff'd, Carson v. Roane-Anderson Co., 342 U.S. 232, 72 S. Ct. 257, 96 L. Ed. 257, 1952 U.S. LEXIS 2643 (1952) (decided under prior law).

State was not entitled to collect gross receipts tax upon funds collected by corporation under fixed cost plus contract upon property which belonged exclusively to the United States government and which was managed and operated by such corporation. Roane-Anderson Co. v. Evans, 200 Tenn. 373, 292 S.W.2d 398, 1956 Tenn. LEXIS 420, 1956 Tenn. LEXIS 421 (1956).

Revenue derived from the right to occupy and use property of the United States was as much government property as the property itself and as such was not subject to state gross receipts taxes. Roane-Anderson Co. v. Evans, 200 Tenn. 373, 292 S.W.2d 398, 1956 Tenn. LEXIS 420, 1956 Tenn. LEXIS 421 (1956).

Collateral References.

Constitutionality of State Bankruptcy-Specific Exemptions Under Supremacy Clause and Bankruptcy Clause of U.S. Constitution (U.S. Const., Art. VI, cl. 2 and Art. I, § 8, cl. 4). 77 A.L.R.6th 273.

Validity of state statutes and administrative regulations regulating internet communications under commerce clause and U.S. Const. amend. 1. 98 A.L.R.5th 167.

NOTES TO DECISIONS

1. Clause 1.

2. —Construction.

U.S. Const. art. 1, § 9, cl. 1 had exclusive reference to persons of the African race. New York v. Compagnie Generale Transatlantique, 107 U.S. 59, 2 S. Ct. 87, 27 L. Ed. 383, 1882 U.S. LEXIS 1200 (1883).

3. Clause 2.

4. —Application to State Courts.

State courts have no authority to take from the custody of a United States marshal, by a writ of habeas corpus, a person held under the authority of the United States. Ableman v. Booth, 62 U.S. 506, 16 L. Ed. 169, 1858 U.S. LEXIS 676 (1859).

Neither congress nor the president has power to suspend the issuing of the writ of habeas corpus by a state court. Griffin v. Wilcox, 21 Ind. 370, 1863 Ind. LEXIS 327 (1863).

The power of the supreme court under a writ of habeas corpus is to determine the question whether the court which sentenced the prisoner had jurisdiction to try him for the offense whereof he was indicted, and to sentence him to imprisonment. Ex parte Carll, 106 U.S. 521, 1 S. Ct. 535, 27 L. Ed. 288, 1882 U.S. LEXIS 1570 (1882).

United States courts have jurisdiction on habeas corpus to discharge from custody a person who is restrained of his liberty in violation of the constitution of the United States, but who, at the time, is held under state process for trial on an indictment charging him with an offense against the laws of the state. Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868, 1886 U.S. LEXIS 1832 (1886).

An inmate serving a state sentence in federal custody concurrent with a federal sentence was permitted to file for habeas corpus relief, and a trial court should not have dismissed his petition based on jurisdictional grounds; however, since he failed to document his assertion that a state sentence imposed was illegal due to the fact that he was on parole when the offenses were committed, summary dismissal of the petition was proper. Faulkner v. State, 226 S.W.3d 358, 2007 Tenn. LEXIS 370 (Tenn. Apr. 27, 2007).

5. —Suspension of Writ.

If public safety at any time requires the suspension of the privilege of the writ of habeas corpus, it is for congress to say so, not for the courts, as it is a political question. Ex parte Bollman, 8 U.S. 75, 2 L. Ed. 554, 1807 U.S. LEXIS 369 (1807), superseded by statute as stated in, Ex parte Monti, 79 F. Supp. 651, 1948 U.S. Dist. LEXIS 2347 (D.N.Y. 1948).

The privilege of the writ of habeas corpus cannot be suspended unless, when in cases of rebellion or invasion, the public safety may require such suspension. In re Keeler, 14 F. Cas. 173, 1843 U.S. Dist. LEXIS 48 (D. Ark. Apr. 1843) (No. 7,637).

The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested, the privilege of this writ in securing his release from custody. Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281, 1866 U.S. LEXIS 861 (1866), overruled, Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578, 2004 U.S. LEXIS 4761 (U.S. 2004).

The suspension of the privilege of the writ does not suspend the writ itself. The writ issues as a matter of course, and, on the return, the court decides whether the petitioner is entitled to the writ. Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281, 1866 U.S. LEXIS 861 (1866), overruled, Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578, 2004 U.S. LEXIS 4761 (U.S. 2004).

The president has no power to suspend the privilege of the writ of habeas corpus except as he may be authorized by congress. McCall v. McDowell, 1867 U.S. App. LEXIS 767, 15 F. Cas. 1235 (C.C.D. Cal. 1867) (No. 8,673).

When congress judges that public safety requires the suspension of this writ, it may suspend it partially in certain localities, or it may delegate the matter of extent to the president. McCall v. McDowell, 1867 U.S. App. LEXIS 767, 15 F. Cas. 1235 (C.C.D. Cal. 1867) (No. 8,673).

5.5. —Denial of Habeas Corpus Affirmed.

Habeas corpus court did not err by summarily denying habeas corpus relief, because although the inmate's judgments indeed evinced an illegal release eligibility percentage, the portion of the sentencing hearing transcript attached to the response established that the trial court did not set a 40 percent release eligibility for the life sentences, and mere clerical errors in the terms of a sentence could not give rise to a void judgment; since the transcript established that the trial court did not impose an illegal sentence, the erroneous release eligibility included in the judgments could be classified as clerical errors. McConnell v. Carlton, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 388 (Tenn. Crim. App. May 19, 2009), appeal denied, McConnell v. Carlton, — S.W.3d —, 2009 Tenn. LEXIS 698 (Tenn. Oct. 19, 2009).

Petitioner was not entitled to habeas corpus relief on the basis of a defective indictment on a charge of rape of a child because, under State v. Hill , the indictment was not fatally defective for failing to allege a culpable mental state; moreover, the application of Hill , which was decided after petitioner committed his offense, to petitioner's indictment did not violate due process or the prohibitions against ex post facto laws. Hill v. Sexton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 30, 2013).

Petitioner was not entitled to habeas corpus relief on the basis of a trial court's failure to award pretrial jail credits because petitioner failed to exhibit to his petition sufficient documentation from the record to establish that he was indeed entitled to pretrial jail credit under T.C.A. § 40-23-101 and that the trial court erroneously failed to award it. Hill v. Sexton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 30, 2013).

5.6. —Denial of Habeas Corpus Reversed.

Petitioner for habeas corpus was entitled to counsel and a hearing because his sentences for two counts of aggravated rape, which reflected a 30 percent release eligibility for each conviction, were illegal on the face of the judgments pursuant to T.C.A. § 39-13-523(a)(2), (b) (now T.C.A. § 39-13-523(a)(3), (b)), which required that a multiple rapist serve 100 percent of his sentence. Turner v. Mills, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. May 13, 2010).

Petitioner was entitled to a writ of habeas corpus and immediate release because the sentencing court failed to give him mandatory credit for time served on community corrections, pursuant to T.C.A. § 40-36-106(e)(3)(B), following revocation of community corrections. Petitioner was not required to follow administrative procedures. Jackson v. Parker, 366 S.W.3d 186, 2011 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Apr. 27, 2011).

6. Clause 3.

7. —Bill of Attainder.

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866); Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366, 1866 U.S. LEXIS 886 (1866); In re Yung Sing Hee, 36 F. 437, 1888 U.S. App. LEXIS 2001 (D. Or. 1888).

U.S. Const. art. 1, § 9, cl. 3 is not evaded by infliction of punishment conditionally, by giving a civil form to the proceeding, nor by assuming the guilt rather than by declaring it. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866).

Section 304 of the Urgent Deficiencies Appropriation Act of 1943 (57 Stat. 431) providing that no salary or compensation should be paid to certain named employees of the government out of any moneys then or thereafter appropriated unless they were again appointed to jobs by the president with the advice and approval of the senate was not a mere appropriation measure since employees were permanently barred from the government service, and was unconstitutional as a bill of attainder. United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252, 1946 U.S. LEXIS 2280 (1946).

A “bill of attainder” is a legislative act which inflicts punishment without a judicial trial where the legislative body exercises the office of judge, and assumes judicial magistracy, and pronounces on the guilt of a party without any of the forms or safeguards of a trial and fixes the punishment. Cox v. State, 222 Tenn. 606, 439 S.W.2d 267, 1969 Tenn. LEXIS 497 (1969), dismissed, Cox v. Tennessee, 396 U.S. 18, 90 S. Ct. 162, 24 L. Ed. 2d 18, 1969 U.S. LEXIS 626 (1969).

Former §§ 33-706 and 33-707, providing for the confinement of an insane person charged with a crime in a state mental institution until such time as he was able to stand trial, did not amount to a bill of attainder, since the statute specifically provided for a judicial determination of his insanity. Cox v. State, 222 Tenn. 606, 439 S.W.2d 267, 1969 Tenn. LEXIS 497 (1969), dismissed, Cox v. Tennessee, 396 U.S. 18, 90 S. Ct. 162, 24 L. Ed. 2d 18, 1969 U.S. LEXIS 626 (1969).

Federal regulation which suspended social security benefits for prisoners convicted of felonies for the duration of their incarceration except in certain circumstances, 42 U.S.C. § 402(x), was not an unconstitutional deprivation of property rights without due process under U.S. Const. amend. 5, nor a bill of attainder in violation of U.S. Const. art. 1, § 9. Hopper v. Schweiker, 596 F. Supp. 689, 1984 U.S. Dist. LEXIS 23297 (M.D. Tenn. 1984), aff'd without opinion, Hopper v. Secretary of Health & Human Services, 780 F.2d 1021, 1985 U.S. App. LEXIS 13832 (6th Cir. Tenn. 1985).

The federal statute which limited educational benefits for a veteran, while incarcerated in a federal, state, or local institution, to the cost of tuition fees and supplies, thereby denying them the subsistence benefits to which they would be otherwise entitled had they not been incarcerated found in 38 U.S.C. § 1682 (see now 38 U.S.C. § 3482), did not violate the due process clause of the fifth amendment or constitute a bill of attainder in violation of U.S. Const., art. 1, § 9. Greenwell v. Walters, 596 F. Supp. 693, 1984 U.S. Dist. LEXIS 23296 (M.D. Tenn. 1984).

Tennessee's Sex Offender Registration and Monitoring Act (title 40, chapter 39) is not a prohibited bill of attainder since gathering and possibly disseminating information is not one of the traditional forms of punishment, the act was not intended to punish, and the act serves a legitimate regulatory purpose. Cutshall v. Sundquist, 193 F.3d 466, 1999 FED App. 352P, 1999 U.S. App. LEXIS 24363 (6th Cir. Tenn. 1999), cert. denied, 529 U.S. 1053, 120 S. Ct. 1554, 146 L. Ed. 2d 460, 2000 U.S. LEXIS 2391 (2000).

8. —Ex Post Facto Laws.

9. — —Definition.

An ex post facto law is one which imposes punishment for an act which was not punishable at the time it was committed; or an additional punishment; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the relation of a party to his disadvantage. Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648, 1798 U.S. LEXIS 148 (1798); Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506, 1882 U.S. LEXIS 1218 (1883), overruled, Collins v. Youngblood, 111 L. Ed. 2d 30, 110 S. Ct. 2715, 497 U.S. 37, 1990 U.S. LEXIS 3294 (1990), overruled, Helsley v. State, 809 N.E.2d 292, 2004 Ind. LEXIS 471 (Ind. 2004), overruled, John L. v. Superior Court, 33 Cal. 4th 158, 91 P.3d 205, 2004 Cal. LEXIS 5518 (2004), overruled, Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 (Ky. 2009); Duncan v. Missouri, 152 U.S. 377, 14 S. Ct. 570, 38 L. Ed. 485, 1894 U.S. LEXIS 2127 (1894).

The term “ex post facto” refers only to laws relating to crimes and penalties, and not to laws of a civil character. Ogden v. Saunders, 25 U.S. 213, 6 L. Ed. 606, 1827 U.S. LEXIS 394 (1827); Satterlee v. Matthewson, 27 U.S. 380, 7 L. Ed. 458, 1829 U.S. LEXIS 433 (1829); Watson v. Mercer, 33 U.S. 88, 8 L. Ed. 876, 1834 U.S. LEXIS 568 (1834); Mallett v. North Carolina, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015, 1901 U.S. LEXIS 1394 (1901).

10. — —Application.

The prohibition of ex post facto laws in U.S. Const. art. 1, § 9 has no application to deportation of aliens, for the reason that an alien remaining in this country has no vested right to do so. It is only where legislation destroys vested rights that the courts interfere and forbid retrospective legislation. Bugajewitz v. Adams, 228 U.S. 585, 33 S. Ct. 607, 57 L. Ed. 978, 1913 U.S. LEXIS 2400 (1913); Mahler v. Eby, 264 U.S. 32, 44 S. Ct. 283, 68 L. Ed. 549, 1924 U.S. LEXIS 2475 (1924); United States ex rel. Feuer v. Day, 42 F.2d 127, 1930 U.S. App. LEXIS 4225 (2d Cir. 1930).

The prohibition of United States constitution against ex post facto laws has no application to the Act of February 20, 1907, ch. 1134, § 3, amended by Act of March 26, 1910, ch. 128, § 2 (now repealed), for the deportation of alien women found practicing prostitution after their entry into the United States. Bugajewitz v. Adams, 228 U.S. 585, 33 S. Ct. 607, 57 L. Ed. 978, 1913 U.S. LEXIS 2400 (1913); Mahler v. Eby, 264 U.S. 32, 44 S. Ct. 283, 68 L. Ed. 549, 1924 U.S. LEXIS 2475 (1924); United States ex rel. Feuer v. Day, 42 F.2d 127, 1930 U.S. App. LEXIS 4225 (2d Cir. 1930).

The state habitual criminal statute is not unconstitutional as an ex post facto law. Frazier v. State, 480 S.W.2d 553, 1972 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App. 1972).

In order to comply with the ex post facto prohibitions of the United States and Tennessee constitutions, pursuant to T.C.A. § 40-35-117(b), the trial court judges imposing sentences after the effective date of the 1989 Sentencing Reform Act, T.C.A. § 40-35-101 et seq., for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser sentence of the two; because the trial court did not calculate the two sentences with regards to one of the aggravated sexual battery convictions as required, the appellate court remanded the case to the trial court for resentencing. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

Petitioner was not entitled to habeas corpus relief on the basis of a defective indictment on a charge of rape of a child because, under State v. Hill , the indictment was not fatally defective for failing to allege a culpable mental state; moreover, the application of Hill , which was decided after petitioner committed his offense, to petitioner's indictment did not violate due process or the prohibitions against ex post facto laws. Hill v. Sexton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 30, 2013).

11. — —Change of Limitations.

Increase of limitation period after commission of crime, but before original limitation has run, was not an ex post facto law. Falter v. United States, 23 F.2d 420, 1928 U.S. App. LEXIS 3182 (2d Cir. 1928), cert. denied, 277 U.S. 590, 48 S. Ct. 528, 72 L. Ed. 1003, 1928 U.S. LEXIS 769 (1928), superseded by statute as stated in, United States v. Roselli, — F. Supp. —, 1993 U.S. Dist. LEXIS 18749 (N.D.N.Y Dec. 30, 1993).

12. — —Change of Procedure.

Laws fixing or changing the place of trial of criminal actions are not violative ordinarily of U.S. Const. art. 1, § 9, cl. 3. Gut v. State, 76 U.S. 35, 19 L. Ed. 573, 1869 U.S. LEXIS 936 (1869); Cook v. United States, 138 U.S. 157, 11 S. Ct. 268, 34 L. Ed. 906, 1891 U.S. LEXIS 2074 (U.S. Jan. 26, 1891).

Statutes enlarging the class of persons who may testify as to the commission of acts previously committed are not ex post facto laws. Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262, 1884 U.S. LEXIS 1719 (1884).

The inhibition against ex post facto laws does not give a criminal the right to be tried in all respects by the law in force when the crime charged was committed. The mode of trial is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments. Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075, 1896 U.S. LEXIS 2233 (1896).

13. — —Change of Punishment.

Laws cannot be passed inflicting punishment for acts that were lawful when committed. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866); Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366, 1866 U.S. LEXIS 886 (1866); Pierce v. Carskadon, 83 U.S. 234, 21 L. Ed. 276, 1872 U.S. LEXIS 1152 (1873); Jaehne v. New York, 128 U.S. 189, 9 S. Ct. 70, 32 L. Ed. 398, 1888 U.S. LEXIS 2210 (1888).

A law cannot be passed after the commission of an act which adds to the punishment for the act, or which alters the situation of the accused to his disadvantage. In re Medley, 134 U.S. 160, 10 S. Ct. 384, 33 L. Ed. 835, 1890 U.S. LEXIS 1957 (1890).

Statutes which mitigate the rigor of the law in force at the time a crime was committed cannot be regarded as an ex post facto law with reference to such crime. Rooney v. North Dakota, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (1905).

Where conviction is predicated on acts occurring after the federal sentencing guidelines' effective date, enhancing a base offense level based on relevant conduct occurring before the guidelines were enacted does not violate the ex post facto clause. United States v. Parrott, 148 F.3d 629, 1998 FED App. 200P, 1998 U.S. App. LEXIS 15001 (6th Cir. Tenn. 1998).

Department of correction's policy which permitted extension of inmate's release eligibility date by thirty percent for assaulting a prison officer did not retroactively inflict a greater punishment on the inmate than was provided for in his original sentence, and was thus not an ex post facto law. Ogburn v. Tennessee Dep't of Correction, 983 S.W.2d 677, 1998 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1998).

Dismissal of defendant's petition for habeas corpus relief was error, because although he was sentenced after November 1, 1989 for premeditated murder, he committed the crime before that date, and under T.C.A. § 40-35-117(b) he was entitled to be sentenced pursuant to Tennessee's 1982 Sentencing Act because he faced a more severe punishment (higher release eligibility) under the 1989 Sentencing Act. Glenn v. State, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 8, 2008).

14. Clause 4.

15. —Application.

U.S. Const. art. 1, § 9, cl. 4 has no application to the states, but limits the powers of congress. Pohl v. Chicago, M. & St. P. Ry., 52 Mont. 572, 160 P. 515, 1916 Mont. LEXIS 97 (1916).

16. — —Banks.

The tax levied by act of congress on the notes of any state bank, or state banking association, is not a direct tax within the meaning of the constitution. Veazie Bank v. Fenno, 75 U.S. 533, 19 L. Ed. 482, 1868 U.S. LEXIS 1130 (1868).

Congress may levy taxes on the circulation of banks, although organized under state laws. Veazie Bank v. Fenno, 75 U.S. 533, 19 L. Ed. 482, 1868 U.S. LEXIS 1130 (1868).

17. — —Gift Tax.

A tax on gifts inter vivos is not a direct tax and need not be apportioned; it is a privilege tax or excise applying to exercise of one of the incidents of ownership. Bromley v. McCaughn, 280 U.S. 124, 50 S. Ct. 46, 74 L. Ed. 226, 1929 U.S. LEXIS 455 (1929).

U.S. Const. art. 1, § 9, cl. 4 is not violated by an Act of 1918 taxing gifts made in contemplation of death, as to gift made while the Act of 1916 was in force, similarly taxing such gifts but at a lower rate. It is a tax on privileges, and not a direct tax. Milliken v. United States, 283 U.S. 15, 51 S. Ct. 324, 75 L. Ed. 809, 1931 U.S. LEXIS 122 (1931).

18. — —Income Tax.

The Corporation Tax of 1909 was not intended to be and is not an income tax, but an excise tax measured by corporate income, hence, it was not a direct tax. Stratton's Independence, Ltd. v. Howbert, 231 U.S. 399, 34 S. Ct. 136, 58 L. Ed. 285, 1913 U.S. LEXIS 2577 (1913).

The Revenue Act of 1916, in so far as it imposes a tax upon a stockholder because of a stock dividend made lawfully and in good faith, violates U.S. Const. art. 1, § 9, cl. 4 and U.S. Const. art 1, § 2, cl. 3 and, to this extent, is invalid notwithstanding U.S. Const. amend. 16. Eisner v. Macomber, 252 U.S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 1920 U.S. LEXIS 1605, 9 A.L.R. 1570 (1920).

The profit received by a trustee on the sale of capital stock is “income” under U.S. Const. amend. 16 and taxable without apportionment. Merchants' Loan & Trust Co. v. Smietanka, 255 U.S. 509, 41 S. Ct. 386, 65 L. Ed. 751, 1921 U.S. LEXIS 1721, 15 A.L.R. 1305 (1921).

19. — —Inheritance Tax.

Power of congress and of states, and construction of statutes imposing a tax upon legacies or inheritances. Orr v. Gilman, 183 U.S. 278, 22 S. Ct. 213, 46 L. Ed. 196, 1902 U.S. LEXIS 718 (1901); Billings v. Illinois, 188 U.S. 97, 23 S. Ct. 272, 47 L. Ed. 400, 1903 U.S. LEXIS 1270 (1903); Snyder v. Bettman, 190 U.S. 249, 23 S. Ct. 803, 47 L. Ed. 1035, 1903 U.S. LEXIS 1547, 15 Ohio F. Dec. 943 (1903).

An estate tax on proceeds of insurance policies that are payable in terms to beneficiaries other than the decedent or his estate, is not a direct tax, but is a transfer or privilege tax, and need not be apportioned. Chase Nat'l Bank v. United States, 278 U.S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A.L.R. 388, 1929 U.S. LEXIS 358 (1929).

An estate tax embracing tenancies by the entireties is a valid indirect tax, and need not be apportioned. Tyler v. United States, 281 U.S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 1930 U.S. LEXIS 404, 69 A.L.R. 758 (1930), superseded by statute as stated in, Legg's Estate v. Commissioner, 114 F.2d 760, 1940 U.S. App. LEXIS 4801 (4th Cir. 1940); Phillips v. Dime Trust & Safe Deposit Co., 284 U.S. 160, 52 S. Ct. 46, 76 L. Ed. 220, 1931 U.S. LEXIS 466 (1931).

20. Clause 5.

21. —Tax on Exports.

An excise tax, laid upon tobacco and snuff before removal from the factory, is not a duty on “exports,” although the articles are intended for exportation. Pace v. Burgess, 92 U.S. 372, 23 L. Ed. 657, 1875 U.S. LEXIS 1768 (1875); Turpin v. Burgess, 117 U.S. 504, 6 S. Ct. 835, 29 L. Ed. 988, 1886 U.S. LEXIS 1866 (1886).

A federal tax on charter parties relating to vessels exclusively for foreign ports, and amounting to a tax on the imports themselves, is void under U.S. Const. art. 1, § 9, cl. 5. United States v. Hvoslef, 237 U.S. 1, 35 S. Ct. 459, 59 L. Ed. 813, 1915 U.S. LEXIS 1304 (1915).

A federal tax on policies of marine insurance for foreign shipments is a tax or duty on articles exported, and is void under U.S. Const. art. 1, § 9, cl. 5. Thames & Mersey Marine Ins. Co. v. United States, 237 U.S. 19, 35 S. Ct. 496, 59 L. Ed. 821, 1915 U.S. LEXIS 1305 (1915).

U.S. Const. art. 1, § 9, cl. 5 is not violated by a tax under U.S. Const. amend. 16 on the net income of corporations, although chiefly resulting from export trade, where there is no discrimination against income from foreign trade, as compared with income from other sources. William E. Peck & Co. v. Lowe, 247 U.S. 165, 38 S. Ct. 432, 62 L. Ed. 1049, 1918 U.S. LEXIS 1966 (1918); National Paper & Type Co. v. Bowers, 266 U.S. 373, 45 S. Ct. 133, 69 L. Ed. 331, 1924 U.S. LEXIS 2678 (1924).

A general sales tax, if it taxes articles exported from the state, violates U.S. Const. art. 1, § 9, cl. 5; so, where title passed to export goods on delivery to commission merchant to secure bill of lading, export transportation had started when the sale took effect, and the tax thereon was void. A.G. Spalding & Bros. v. Edwards, 262 U.S. 66, 43 S. Ct. 485, 67 L. Ed. 865, 1923 U.S. LEXIS 2616 (1923).

Oil brought for foreign export is not, while in storage tanks in a state other than that where the purchase is made, subject to taxation by such state although the exact point of destination is not fixed and the ships were loaded from bulk without separation of the various shipments from the points of origin. Carson Petro. Co. v. Vial, 279 U.S. 95, 49 S. Ct. 292, 73 L. Ed. 626, 1929 U.S. LEXIS 326 (1929).

22. Clause 6.

23. —Construction.

The word “state,” as used in U.S. Const. art. 1, § 9, cl. 6, does not include the incorporated and organized, Territory of Alaska, and congress is not required to provide the same regulations for Alaskan ports as for ports in the states of the union. Alaska v. Troy, 258 U.S. 101, 42 S. Ct. 241, 66 L. Ed. 487, 1922 U.S. LEXIS 2245 (1922).

24. —Discrimination.

The Reed Amendment Act of March 3, 1917, ch. 162, § 5 (Mason's U.S. Code, title 18, § 341; U.S.C., title 18, § 341; F.C.A., title 18, § 341 [repealed]), prohibiting use of mails for advertising intoxicating liquors in prohibition states, is not repugnant to the constitutional prohibition of any regulation of commerce which gives preference to the ports of one state over those of another. Williams v. United States, 255 U.S. 336, 41 S. Ct. 364, 65 L. Ed. 664, 1921 U.S. LEXIS 1765 (1921).

U.S. Const. art. 1, § 9, cl. 6 does not prevent discrimination as between ports, but only as between states in respect of their ports; so, incidental disadvantages to certain ports on account of rates and improvements do not violate U.S. Const. art. 1, § 9, cl. 6. Louisiana Pub. Serv. Comm'n v. Texas & N.O.R.R., 284 U.S. 125, 52 S. Ct. 74, 76 L. Ed. 201, 1931 U.S. LEXIS 877 (1931).

25. —Power of Congress.

U.S. Const. art. 1, § 9 is only a limitation on the powers of congress, and does not affect the states in the regulation of their domestic affairs. Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77, 1876 U.S. LEXIS 1842 (1876) (No. 17,726a); Williams v. The Lizzie Henderson, 29 F. Cas. 1373, 1880 U.S. Dist. LEXIS 4 (S.D. Fla. 1880); Morgan's S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455, 6 S. Ct. 1114, 30 L. Ed. 237, 1886 U.S. LEXIS 1945 (1886); Johnson v. Chicago & Pac. Elevator Co., 119 U.S. 388, 7 S. Ct. 254, 30 L. Ed. 447, 1886 U.S. LEXIS 2004 (1886).

26. Clause 7.

27. —Control of Money.

It is entirely within the competency of congress to say what claims shall be paid. A claim for woods furnished before 1861 could be excepted from the general statutes on claims on account of a claimant having been a person who “sustained” the Confederacy, even though later pardoned. Hart v. United States, 118 U.S. 62, 6 S. Ct. 961, 30 L. Ed. 96, 1886 U.S. LEXIS 1902 (1886).

Although the federal judiciary has the duty and the power to prohibit segregation in the schools of Tennessee, it does not follow that the judiciary has any corresponding authority to dictate the specific financial arrangements under which the costs of integrating the schools shall be handled; as long as those costs are in fact paid, there is no justification for an unelected judiciary making policy judgments as to how the tax burden shall be allocated. Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986, 1987 U.S. App. LEXIS 16899 (6th Cir. Tenn. 1987), cert. denied, Metropolitan County Bd. of Educ. v. Tennessee, 487 U.S. 1206, 108 S. Ct. 2848, 101 L. Ed. 2d 885, 1988 U.S. LEXIS 2848 (1988).

Federal courts were not justified in shifting costs in school desegregation program from metropolitan school board to state. Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986, 1987 U.S. App. LEXIS 16899 (6th Cir. Tenn. 1987), cert. denied, Metropolitan County Bd. of Educ. v. Tennessee, 487 U.S. 1206, 108 S. Ct. 2848, 101 L. Ed. 2d 885, 1988 U.S. LEXIS 2848 (1988).

28. —Necessity of Appropriation.

Mandamus will not lie against the secretary of the treasury to compel him to pay a debt of the United States where no appropriation has been made therefor by congress. Reeside v. Walker, 52 U.S. 272, 13 L. Ed. 693, 1850 U.S. LEXIS 1508 (1851).

29. —Publication of Accounts.

Books of the treasury department, printed from written public records under U.S. Const. art. 1, § 9, cl. 7, were admissible to prove nonpayment of a dividend owed the United States. Chesapeake & Del. Canal Co. v. United States, 250 U.S. 123, 39 S. Ct. 407, 63 L. Ed. 889, 1919 U.S. LEXIS 1725 (1919).

30. Clause 8.

31. —Title of Nobility.

Congress and the state equally are expressly prohibited from granting any title of nobility. Legal Tender Case, 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

32. Miscellaneous.

Trial court did not err when it denied the husband's request for a jury trial because a criminal contempt proceeding was not enough of a crime to require initiation by an indictment or presentment, and there was no right to a trial by jury. Dockery v. Dockery, — S.W.3d —, 2009 Tenn. App. LEXIS 717 (Tenn. Ct. App. Oct. 29, 2009).

NOTES TO DECISIONS

1. Clause 1.

2. —Treaties.

In connection with compact between Oregon and Washington relating to fish and fishing in the Columbia River, it was held that the compact was not a “treaty” within the constitutional sense of U.S. Const. art. 1, § 10, cl. 1. Anthony v. Veatch, 189 Ore. 462, 220 P.2d 493, 1950 Ore. LEXIS 206 (1950), appeal dismissed, 340 U.S. 923, 71 S. Ct. 499, 95 L. Ed. 667, 1951 U.S. LEXIS 2161 (1951).

Question of whether “sue and be sued” clause in interstate compact approved by congress amounted to a waiver of the state's immunity from suit as granted by U.S. Const. amend. 11 presented a federal question. Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804, 1959 U.S. LEXIS 1763 (1959).

3. —Alliance or Confederation.

Several states having entered into an alliance and confederated together and issued confederate treasury notes for the illegal and unlawful purpose of levying war against the government and in violation of the constitution, the issuance was illegal, treasonable and void, and the receipt and passing of them was an illegal act. Thornburg v. Harris, 43 Tenn. 157, 1866 Tenn. LEXIS 31 (1866), overruled, Sherfy v. Argenbright, 48 Tenn. 128, 1870 Tenn. LEXIS 25, 2 Am. Rep. 690 (1870).

Recognition of a revolted province as a belligerent by foreign states and recognition of a state of war by the parent government do not vest in the province rights of sovereignty authorizing issuance of currency that can be recognized as legal by the courts sitting under the authority of the regular government. Thornburg v. Harris, 43 Tenn. 157, 1866 Tenn. LEXIS 31 (1866), overruled, Sherfy v. Argenbright, 48 Tenn. 128, 1870 Tenn. LEXIS 25, 2 Am. Rep. 690 (1870).

4. —Letters of Marque and Reprisal.

The power to grant letters of marque and reprisal is expressly given to congress. Barron v. Mayor of Baltimore, 32 U.S. 243, 8 L. Ed. 672, 1833 U.S. LEXIS 346 (1833).

5. —Coining Money.

State sales tax providing for collection in tokens did not constitute coining of money. Morrow v. Henneford, 182 Wash. 625, 47 P.2d 1016, 1935 Wash. LEXIS 686 (1935).

Imposition of sales tax on the exchange of gold and silver coins and bullion does not interfere with the exclusive right of the federal government to coin money. State v. Sanders, 923 S.W.2d 540, 1996 Tenn. LEXIS 358 (Tenn. May 28, 1996).

6. —Bills of Credit.

Certificates issued by a state in various sums, receivable for state, county, and town dues, and for which the funds of the state are pledged, are bills of credit. Craig v. Missouri, 29 U.S. 410, 7 L. Ed. 903, 1830 U.S. LEXIS 486 (1830); Byrne v. Missouri, 33 U.S. 40, 8 L. Ed. 859, 1834 U.S. LEXIS 564 (1834).

To constitute a bill of credit, it must be issued by the state, involve the faith of the state, and be designed to circulate as money. Briscoe v. President & Dirs. of Bank, 36 U.S. 257, 9 L. Ed. 709, 1837 U.S. LEXIS 178 (1837); Houston & Tex. Cent. R.R. v. Texas, 177 U.S. 66, 20 S. Ct. 545, 44 L. Ed. 673, 1900 U.S. LEXIS 1775 (1900).

If a state owns all the stock of a bank, and the state is pledged for the redemption of the bills issued, such bills are not bills of credit. Briscoe v. President & Dirs. of Bank, 36 U.S. 257, 9 L. Ed. 709, 1837 U.S. LEXIS 178 (1837); Darrington v. Bank of Alabama, 54 U.S. 12, 14 L. Ed. 30, 1851 U.S. LEXIS 832 (1851).

Change bills emitted by a railroad corporation owned by a state on a pledge of the railroad, its fixtures, property and revenues for their redemption, and not exclusively on the faith of the state are not bills of credit within the meaning of U.S. Const. art. 1, § 10, cl. 1; and their payment may be enforced in this state. Western & A.R.R. v. Taylor, 53 Tenn. 408, 1871 Tenn. LEXIS 374 (Tenn. Oct. 18, 1871).

States are inhibited from issuing bills of credit drawn by the states and resting merely on the credit for payment but not notes or bills the payment of which is to be made out of funds pledged for that purpose. Gowen v. Shute, 63 Tenn. 57, 1874 Tenn. LEXIS 205 (Tenn. 1874).

Interest coupons of bonds issued by a state are not bills of credit, because such coupons are receivable for debts due the state. Poindexter v. Greenhow, 114 U.S. 270, 5 S. Ct. 903, 29 L. Ed. 185, 1885 U.S. LEXIS 1759 (1885).

7. —Legal Tender.

An act directing that no execution shall issue upon a judgment for two years after its rendition unless the creditor agrees to take paper is invalid as violative of the prohibition in the first paragraph against tender laws. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

Since nothing but gold and silver coin is a legal tender, tender in bank notes of the bank of the United States to redeem land sold under execution, if objected to will not be good, although equal to coin. Lowry v. McGhee, 16 Tenn. 242, 1835 Tenn. LEXIS 87 (1835).

8. —Bill of Attainder.

While bills of attainder are generally directed against individuals by name, they may be directed against a whole class. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866).

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866).

A “bill of attainder” is a legislative act which inflicts punishment without a judicial trial where the legislative body exercises the office of judge, and assumes judicial magistracy, and pronounces on the guilt of a party without any of the forms or safeguards of a trial and fixes the punishment. Cox v. State, 222 Tenn. 606, 439 S.W.2d 267, 1969 Tenn. LEXIS 497 (1969), dismissed, Cox v. Tennessee, 396 U.S. 18, 90 S. Ct. 162, 24 L. Ed. 2d 18, 1969 U.S. LEXIS 626 (1969).

Former §§ 33-706 and 33-707, providing for the confinement of an insane person charged with a crime in a state mental institution until such time as he was able to stand trial, did not amount to a bill of attainder since the statute specifically provided for a judicial determination of his insanity. Cox v. State, 222 Tenn. 606, 439 S.W.2d 267, 1969 Tenn. LEXIS 497 (1969), dismissed, Cox v. Tennessee, 396 U.S. 18, 90 S. Ct. 162, 24 L. Ed. 2d 18, 1969 U.S. LEXIS 626 (1969).

9. —Ex Post Facto Laws.

When a prisoner committed the crimes of murder, T.C.A. § 39-13-202, and armed robbery, T.C.A. § 39-13-402, in 1986, the prisoner knew that violations of the prison disciplinary rules could put the prisoner at risk of serving a longer period of time before becoming eligible to be considered for parole and, accordingly, neither the 1989 nor the 1996 changes in the prison's disciplinary policy deprived the prisoner of a pre-existing right or enhanced the punishment for the prisoner's 1986 crimes beyond the punishment authorized by T.C.A. § 40-35-501(h); thus, applying the 1989 and 1996 versions of prison policy to the prisoner for the disciplinary offenses of escape and assault committed in 1989 and 1997 did not run afoul of the federal or state ex post facto clauses, Const. art. 1, § 10, cl. 1 and Tenn. Const. art. I, § 11. Utley v. Tenn. Dep't of Corr., 118 S.W.3d 705, 2003 Tenn. App. LEXIS 325 (Tenn. Ct. App. 2003).

Defendant failed to establish that his trial counsel was ineffective in setting out the range of punishment for the offense charged when the conspiracy to which defendant pled guilty, delivery of over three hundred pounds of marijuana, continued beyond the effective date of the statute designating the offense as a Class A felony, T.C.A. § 39-17-417(j)(13), and defendant could properly be convicted of a Class A felony without violating the ex post facto provisions of U.S. Const. art. 1, § 10, cl. 1, Tenn. Const. art. I, § 11, and T.C.A. § 39-11-112. Agee v. State, 111 S.W.3d 571, 2003 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 331 (Tenn. Apr. 28, 2003).

Denial of the petitioner's motion for expungement of any records relating to the charge of child abuse was reversed and remanded because the 2003 amendment to the expungement statute could not be used to deny the petitioner's request for expungement, when retroactive application of the amended expungement statute violated the petitioner's constitutional protection against ex post facto laws because at minimum it offered a situation disadvantageous to the petitioner by unduly burdening him with the societal stigma attached to a felony. State v. Hanners, 235 S.W.3d 609, 2007 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 12, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 676 (Tenn. Aug. 13, 2007).

10. — —Definitions and Limitations.

The states cannot inflict punishment or deprive a person of a right for a past act which was not punishable at the time the act was committed. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866); Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366, 1866 U.S. LEXIS 886 (1866); Pierce v. Carskadon, 83 U.S. 234, 21 L. Ed. 276, 1872 U.S. LEXIS 1152 (1873); Jaehne v. New York, 128 U.S. 189, 9 S. Ct. 70, 32 L. Ed. 398, 1888 U.S. LEXIS 2210 (1888).

An ex post facto law is one which imposes punishment for an act which was not punishable at the time it was committed, or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the relation of a party to his disadvantage. Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648, 1798 U.S. LEXIS 148 (1798); Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506, 1882 U.S. LEXIS 1218 (1883), overruled, Collins v. Youngblood, 111 L. Ed. 2d 30, 110 S. Ct. 2715, 497 U.S. 37, 1990 U.S. LEXIS 3294 (1990), overruled, Helsley v. State, 809 N.E.2d 292, 2004 Ind. LEXIS 471 (Ind. 2004), overruled, John L. v. Superior Court, 33 Cal. 4th 158, 91 P.3d 205, 2004 Cal. LEXIS 5518 (2004), overruled, Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 (Ky. 2009); Duncan v. Missouri, 152 U.S. 377, 14 S. Ct. 570, 38 L. Ed. 485, 1894 U.S. LEXIS 2127 (1894).

The phrase “ex post facto law,” as used in the constitution, is applicable only to criminal and penal laws. Pittsburgh, C., C. & St. L. Ry. v. Lightheiser, 168 Ind. 438, 78 N.E. 1033, 1906 Ind. LEXIS 171 (1906); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137, 1911 U.S. LEXIS 1626 (1911).

11. — — —Judicial Decisions.

Erroneous or inconsistent decisions by the courts are not reached by the prohibition of U.S. Const. art. 1, § 10, against ex post facto laws, but such provision is directed against legislative action only. Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969, 1915 U.S. LEXIS 1338 (1915).

The ex post facto clause, by its own terms, does not apply to courts and extending the clause to courts through the rubric of due process would circumvent the clear constitutional text; limitations on ex post facto judicial decisionmaking are inherent in the notion of due process. Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697, 2001 U.S. LEXIS 3519 (2001).

Petitioner was not entitled to habeas corpus relief on the basis of a defective indictment on a charge of rape of a child because, under State v. Hill , the indictment was not fatally defective for failing to allege a culpable mental state; moreover, the application of Hill , which was decided after petitioner committed his offense, to petitioner's indictment did not violate due process or the prohibitions against ex post facto laws. Hill v. Sexton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Jan. 30, 2013).

12. — —Subjects.

13. — — —Civil Matters.

Laws may be passed validating invalid deeds or contracts. Satterlee v. Matthewson, 27 U.S. 380, 7 L. Ed. 458, 1829 U.S. LEXIS 433 (1829); Watson v. Mercer, 33 U.S. 88, 8 L. Ed. 876, 1834 U.S. LEXIS 568 (1834).

14. — — —Business and Professions.

The legislature of a state may enact that a person who has been convicted of a crime shall no longer engage in the practice of medicine; such an enactment is not an ex post facto law. Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002, 1898 U.S. LEXIS 1537 (1898).

Sections 59-1701 — 59-1721 (now §§ 55-17-101 — 55-17-120) regulating the purchase and sale of motor vehicles and relating to the licensing of dealers, distributors and salesmen, did not constitute a bill of attainder, ex post facto law or a law impairing the obligation of contracts. Ford Motor Co. v. Pace, 206 Tenn. 559, 335 S.W.2d 360, 1960 Tenn. LEXIS 394, 1960 Tenn. LEXIS 395 (1960), appeal dismissed, 364 U.S. 444, 81 S. Ct. 235, 5 L. Ed. 2d 192, 1960 U.S. LEXIS 144 (1960), rehearing denied, 364 U.S. 939, 81 S. Ct. 377, 5 L. Ed. 2d 371 (1961), dismissed, View Crest Garden Apartments, Inc. v. United States, 5 L. Ed. 2d 195, 81 S. Ct. 235, 364 U.S. 902, 1960 U.S. LEXIS 166 (1960).

15. — — —Punishment.

Repeal of a penal statute operates as a pardon of all offenses committed before that time which have not been prosecuted, except where the repealing statute contains a provision expressly saving right to prosecute under the repealed law. Roberts v. State, 2 Tenn. 423, 1815 Tenn. LEXIS 6 (1815).

A common law punishment, which is repealed by statute, if revived by repeal of such statute, can only operate in the future and not upon cases which had happened between the repeal and the revival. Roberts v. State, 2 Tenn. 423, 1815 Tenn. LEXIS 6 (1815).

States cannot inflict punishment under the form of creating a qualification or attaching a condition for a past act which was not punishable at the time committed. Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1866); Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366, 1866 U.S. LEXIS 886 (1866).

A law cannot be passed after the commission of an act which adds to the punishment for the act, or which alters the situation of the accused to his disadvantage. In re Medley, 134 U.S. 160, 10 S. Ct. 384, 33 L. Ed. 835, 1890 U.S. LEXIS 1957 (1890).

Statutes which mitigate the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto laws with reference to such crime. Rooney v. North Dakota, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (1905).

A statute which changes the mode of executing the death penalty is not an ex post facto law. Malloy v. South Carolina, 237 U.S. 180, 35 S. Ct. 507, 59 L. Ed. 905, 1915 U.S. LEXIS 1324 (1915).

Application of a new standard to deny probation for an offense committed prior to the enactment of that standard is prohibited as ex post facto legislation. Boykins v. State, 584 S.W.2d 194, 1979 Tenn. LEXIS 455 (Tenn. 1979).

A trial court imposing a sentence after the effective date of the 1989 Sentencing Reform Act for a burglary committed before that date must calculate the appropriate sentence under both the 1982 sentencing statute and the 1989 act, and then impose the lesser sentence of the two statutes. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

In determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee constitutions is whether the law changes the punishment to the defendant's disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993); State v. Dunn, 901 S.W.2d 398, 1995 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1995).

Repeal of parole eligibility standards previously available to an inmate implicates the ex post facto clause if the effect of the repeal is to impose a greater or more severe punishment than was proscribed by law at the time of the offense. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

Refusal of the parole board to give defendant the benefit of a presumption that inmates would be paroled when they first became eligible did not violate the ex post facto clause even though the regulation was repealed after the date of defendant's crime; defendant did not allege that release would have occured under the regulation, and the presumption was never valid because it was inconsistent with a statute on the same subject. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

A change in a regulation of the department of correction limiting the eligibility of sex offenders for transfer to minimum custody was not an ex post facto law. Jaami v. Conley, 958 S.W.2d 123, 1997 Tenn. App. LEXIS 420 (Tenn. Ct. App. 1997).

Tennessee's Sex Offender Registration and Monitoring Act (title 40, ch. 39) was not intended to punish, and its requirements do not transform the law into punishment, thus the ex post facto clause is not implicated. Cutshall v. Sundquist, 193 F.3d 466, 1999 FED App. 352P, 1999 U.S. App. LEXIS 24363 (6th Cir. Tenn. 1999), cert. denied, 529 U.S. 1053, 120 S. Ct. 1554, 146 L. Ed. 2d 460, 2000 U.S. LEXIS 2391 (2000).

Department of correction did not violate the constitutional prohibitions against ex post facto laws in extending prisoner's release eligibility date (RED). Even though the specific rule used to extend his RED after he assaulted a prison guard was not in effect at the time he was sentenced, the rule was in effect at the time he assaulted the prison guard, therefore he could not argue that he did not have fair warning of the possible consequences of his assault. Smith v. Campbell, 995 S.W.2d 116, 1999 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1999).

Application of § 40-28-123 (as amended in 1978) to prisoner's 1973 sentence did not subject him to an unconstitutional ex post facto law; the penalties imposed were for a valid conviction of acts committed subsequent to the enactment of the statute. Wheeler v. Tennessee Dep't of Correction, 36 S.W.3d 824, 2000 Tenn. App. LEXIS 183 (Tenn. Ct. App. 2000).

Trial court properly held that an inmate failed to state an ex post facto violation where the challenged statutory changes did not affect his eligibility for parole, only the procedures used to decide whether to grant parole. Powers v. Tennessee Bd. of Probation & Paroles, — S.W.3d —, 2007 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 23, 2007).

16. — — —Procedure.

Laws merely fixing or changing the place of trial of criminal actions do not violate U.S. Const. art. 1, § 10, cl. 1. Gut v. State, 76 U.S. 35, 19 L. Ed. 573, 1869 U.S. LEXIS 936 (1869); Cook v. United States, 138 U.S. 157, 11 S. Ct. 268, 34 L. Ed. 906, 1891 U.S. LEXIS 2074 (U.S. Jan. 26, 1891).

Statutes enlarging the class of persons who may testify as to the commission of acts previously committed are not ex post facto laws. Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262, 1884 U.S. LEXIS 1719 (1884).

The mode of trial is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments. Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075, 1896 U.S. LEXIS 2233 (1896).

The enactment of a statute providing for an appeal by the state in a criminal action after an offense has been committed, and a trial had, is not an ex post facto law within the meaning of the constitution. Mallett v. North Carolina, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015, 1901 U.S. LEXIS 1394 (1901).

Change in law as to number of grand jurors and number required to concur held not ex post facto as to offense committed before change became effective. State v. Kavanaugh, 32 N.M. 404, 258 P. 209, 1927 N.M. LEXIS 45, 53 A.L.R. 706 (1927).

There is no authority for the position that legislative changes in the standard of review by appellate courts are ex post facto laws. Title 40, Ch. 35, parts 1-5 do not increase the punishment beyond that provided when the offense was created, nor do they meet any other category of ex post facto law as found in Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 1947 Tenn. LEXIS 369 (1947), appeal dismissed, 333 U.S. 859, 68 S. Ct. 745, 92 L. Ed. 1138, 1948 U.S. LEXIS 2375 (1948), dismissed, Young v. Murphy, 68 S. Ct. 745, 333 U.S. 863, 92 L. Ed. 1142, 1948 U.S. LEXIS 2398 (1948). See State v. Ashby, 823 S.W.2d 166, 1991 Tenn. LEXIS 489 (Tenn. 1991).

Change in the rule prohibiting spouses from testifying over objection in criminal cases to rule that only a witness spouse may invoke the spousal privilege did not constitute a violation of the prohibition against ex post facto laws. State v. Bragan, 920 S.W.2d 227, 1995 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 717 (1995).

Tennessee Exclusionary Rule Reform Act, T.C.A. § 40-6-108, was not an ex post facto statute as applied in defendant's case. As a result, defendant's motion to suppress the evidence against defendant was not well-taken because the error in the date written on the search warrant was a good faith or technical mistake and the trial court properly ruled that, pursuant to the Act, the evidence was not to be suppressed. State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

17. —Impairment of Contracts.

The mere regulation of signage does not establish an unconstitutional impairment of sign owners' contractual rights with lessees. As a general rule, the exercise of governmental police power to protect life, health and public safety is paramount to the contractual rights of individuals. Pitts v. Pilkerton, 714 F. Supp. 285, 1988 U.S. Dist. LEXIS 16442 (M.D. Tenn. 1988).

18. — —Construction.

The law is the source of the obligations of contracts; and the extent of the obligation is defined by the law in use at the time the contract is made, and cannot be changed by subsequent legislation without violating the constitutional prohibition of laws impairing the obligation of contracts. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

Though the legislature has unrestricted power, within its discretion, for the public advantage, to declare the force and effect of future contracts made and to be executed in the state, it has power as to existing contracts over the remedy but not over the contract, that being secured and protected under the sanctity of the constitution. Greenfield v. Dorris, 33 Tenn. 548, 1853 Tenn. LEXIS 84 (1853).

Laws in force at the time of making contracts constitute a part thereof, and cannot be changed so as to impair the obligation of such contracts. Walker v. Whitehead, 83 U.S. 314, 21 L. Ed. 357, 1872 U.S. LEXIS 1160 (1873); Edwards v. Kearzey, 96 U.S. 595, 24 L. Ed. 793, 1877 U.S. LEXIS 1704 (1877); Louisiana v. New Orleans, 102 U.S. 203, 26 L. Ed. 132, 1880 U.S. LEXIS 2025 (Tenn. Nov. 22, 1880).

Constitutional prohibition against retrospective law or law impairing obligation of contracts does not mean that absolutely no retrospective law shall be made, but only forbids a retrospective law which impairs the obligation of contracts or divests or impairs vested rights. Shields v. Clifton Hill Land Co., 94 Tenn. 123, 28 S.W. 668, 1894 Tenn. LEXIS 31, 45 Am. St. Rep. 700, 26 L.R.A. 509 (1894).

The supreme court of the United States is the final arbiter of questions involving the contract, retrospective law, due process, and equal protection provisions contained in both state and federal constitutions so that all decisions of such court with reference to such questions are controlling. Paine v. Fox, 172 Tenn. 290, 112 S.W.2d 1, 1937 Tenn. LEXIS 79 (1937).

Acts 1943, ch. 108, which amended § 26-601 (now § 26-4-101) so as to subject to the claims of the state property which was exempt from the claims of creditors under such section, was invalid insofar as it was retrospective in character. State v. Caldwell, 181 Tenn. 74, 178 S.W.2d 624, 1944 Tenn. LEXIS 346, 151 A.L.R. 1410 (1944).

19. — —Application.

A license granted to keep a ferry does not amount to a contract. Town of E. Hartford v. Hartford Bridge Co., 51 U.S. 511, 13 L. Ed. 518, 1850 U.S. LEXIS 1479 (1850).

Bounties, offered by law for the production of articles, are not contracts protected by U.S. Const. art. 1, § 10, cl. 1. Salt Co. v. East Saginaw, 80 U.S. 373, 20 L. Ed. 611, 1871 U.S. LEXIS 1349 (1871).

The contracts designed to be protected by U.S. Const. art. 1, § 10 are those by which certain definite, fixed, or private rights of property are vested. Jones, Purvis & Co. v. Hobbs, 63 Tenn. 113, 1874 Tenn. LEXIS 217 (1874).

The prohibition against impairment of contracts applies to implied as well as to express contracts. Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S. Ct. 329, 29 L. Ed. 587, 1885 U.S. LEXIS 1899 (1885).

The constitutional provision applies only to contracts made prior to the passage of the law. Lehigh Water Co. v. Easton, 121 U.S. 388, 7 S. Ct. 916, 30 L. Ed. 1059, 1887 U.S. LEXIS 2057 (1887); Munday v. Wisconsin Trust Co., 252 U.S. 499, 40 S. Ct. 365, 64 L. Ed. 684, 1920 U.S. LEXIS 1529 (1920).

A county is a political subdivision of a state and stands in its governmental character in no contract relation with the state, and hence is not within prohibition of contract impairment. Cunningham v. Broadbent, 177 Tenn. 202, 147 S.W.2d 408, 1940 Tenn. LEXIS 28 (1941).

Application of the statute of limitations to a petition for post-conviction relief did not impair contractual obligations of the state under a plea agreement, in violation of the state and federal constitutions; the petitioner could not use contract principles to invalidate a judgment of conviction and the post-conviction act in effect at the time did not grant him a vested right to bring a post-conviction claim at any time. Brown v. State, 928 S.W.2d 453, 1996 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. 1996).

Removal by the state of satellite equipment donated for the use of death row inmates in state prison did not violate constitutional rights of the donors or inmates. Rawls v. Sundquist, 929 F. Supp. 284, 1996 U.S. Dist. LEXIS 7592 (M.D. Tenn. 1996), aff'd without opinion, 113 F.3d 1235, 1997 U.S. App. LEXIS 17553 (6th Cir. Tenn. 1997).

20. — — —Public Municipal Corporations.

Since utility districts such as the plaintiff are public, municipal corporations, U.S. Const. art. 1, § 10 and Tenn. Const. art. I, § 20, do not protect them from legislation amending their charters or altering their powers, and thus Acts 1990, ch. 861 does not unconstitutionally impair the plaintiff's obligations of contract. First Utility Dist. v. Clark, 834 S.W.2d 283, 1992 Tenn. LEXIS 364 (Tenn. 1992).

21. — —State and Municipal Contracts.

22. — — —Agencies.

Sections 13-828 to 13-831 (now §§ 13-20-301 to 13-20-304) cannot be held to impair the contracts of the metropolitan development and housing agency, as an agency created by the state cannot claim the constitutional protection of the contract clause against the alleged impairment of those contracts by the state. Metropolitan Development & Housing Agency v. South Cent. Bell Tel. Co., 562 S.W.2d 438, 1977 Tenn. App. LEXIS 259 (Tenn. Ct. App. 1977).

23. — — —Double Jeopardy Not Found.

Defendant's sentences of incarceration and death did not constitute multiple punishments for the same conduct in violation of Tenn. Const. art. I, § 10 because: (1) The offenses, first-degree murder under T.C.A. § 39-13-202(a)(1) (1989) and conspiracy to commit first-degree murder under T.C.A. § 39-12-103(a) (1989) were not the same under the Blockburger test; (2) The same evidence was not required to prove both offenses, as defendant's conviction for first-degree murder required proof of his criminal responsibility for his wife's death and proof of his wife's death, but his conviction for conspiracy to commit first-degree murder required proof of an agreement to commit murder, but not necessarily proof of a killing; (3) Although there was only one victim, defendant committed separate acts and distinct acts. Defendant's act of murder, which he committed by employing another to commit the murder for remuneration or the promise of remuneration, was separate and distinct from defendant's entering into an agreement with his accomplice to have his wife killed; in addition, defendant's agreement with his accomplice to have his wife killed was separate and distinct from the act satisfying the aggravating circumstance of T.C.A. § 39-13-204(i)(4), defendant's act of offering his accomplice a boat, motor, and pickup truck in exchange for the completed killing; and (4) The legislative purpose of the statutes was different. State v. Stephenson, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

24. — — —Agents.

If a state employs an agent to collect claims due the state, on a commission, there is no contract which the state may not revoke. Missouri ex rel. Walker v. Walker, 125 U.S. 339, 8 S. Ct. 929, 31 L. Ed. 769, 1888 U.S. LEXIS 1936 (1888).

25. — — —Banks.

When the common school fund was placed in the Bank of Tennessee to constitute part of its capital, it became assets of the bank to which the bank's creditors had a right to look and a trust fund applicable to payment of the bank's debts, so that act appropriating assets of the bank as school fund impaired the obligation of contract between the bank and its creditors and was void as was the assignment made in pursuance of that act, so far as it gave preference to the school fund. State v. President & Directors of Bank, 64 Tenn. 1, 1875 Tenn. LEXIS 123 (1875).

Where the state consented to being sued for the purpose of adjudication, but provided no remedy to enforce any judgment against the state, it is no impairment of a contract of the state guaranteeing losses in a state bank, to withdraw its consent to be sued. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L. Ed. 960, 1879 U.S. LEXIS 1923 (1880).

Where a foreign building and loan association issued a stock certificate to a member, and he applied for a loan to which he was entitled under the membership, a contractual relation existed, which the state could not impair by excluding such associations from the state except on onerous conditions. Bedford v. Eastern Bldg. & Loan Ass'n, 181 U.S. 227, 21 S. Ct. 597, 45 L. Ed. 834, 1901 U.S. LEXIS 1361 (1901).

Acts 1933, ch. 107, providing for the reorganization and reopening of suspended banks does not violate U.S. Const. art. 1, § 10, since such statute merely provides a new method of liquidation and a new remedy for depositors and creditors of such suspended bank without affecting the constitutional rights of such parties. Paine v. Fox, 172 Tenn. 290, 112 S.W.2d 1, 1937 Tenn. LEXIS 79 (1937).

26. — — —Bonds.

If state bonds are issued under an act providing that interest coupons shall be receivable for taxes due the state, such obligation cannot be repudiated by the state. Poindexter v. Greenhow, 114 U.S. 270, 5 S. Ct. 903, 29 L. Ed. 185, 1885 U.S. LEXIS 1759 (1885); McGahey v. Virginia, 135 U.S. 662, 10 S. Ct. 972, 34 L. Ed. 304, 1890 U.S. LEXIS 2049 (1890); McCullough v. Virginia, 172 U.S. 102, 19 S. Ct. 134, 43 L. Ed. 382, 1898 U.S. LEXIS 1643 (1898).

Bonds of a state which are put into circulation fraudulently after being declared invalid by the state constitution are not such contracts as are protected by the constitution of the United States. Bier v. McGehee, 148 U.S. 137, 13 S. Ct. 580, 37 L. Ed. 397, 1893 U.S. LEXIS 2214 (1893).

Where bonds of a political subdivision of a state are issued under the authority of law, the state, after the issue of such bonds, cannot so change the law as to the levy of taxes for the payment of such bonds that the enforcement of the payment thereof will be materially affected. State ex rel. Hamilton v. Hannibal & St. J.R.R., 113 Mo. 297, 21 S.W. 14, 1893 Mo. LEXIS 1 (1893).

A state income tax on income from bonds issued by law, as tax exempt, is invalid as an impairment of contract. Macallen Co. v. Massachusetts, 279 U.S. 620, 49 S. Ct. 432, 73 L. Ed. 874, 1929 U.S. LEXIS 341, 65 A.L.R. 866 (1929), rehearing denied, Macallen Co. v. Massachusetts, 280 U.S. 513, 50 S. Ct. 14, 74 L. Ed. 585, 1929 U.S. LEXIS 780 (1929) , superseded by statute as stated in, Commissioner of Revenue v. Massachusetts Mut. Life Ins. Co., 384 Mass. 607, 428 N.E.2d 297, 1981 Mass. LEXIS 1490 .

Statutory imposition of annual excise tax upon corporation's net earnings in state is not unconstitutional as impairing obligation of contract in that it failed to exclude income from securities exempt from taxation under state laws. The act was not aimed at such income, and any resulting burden thereon was fortuitous and incidental. General Sec. Co. v. Williams, 161 Tenn. 50, 29 S.W.2d 662, 1929 Tenn. LEXIS 34 (1930).

A corporation franchise tax computed on net income including interest on tax exempt bonds does not impair the contract of exemption, since the burden on the tax exempt bonds is incidental and accidental. Pacific Co. v. Johnson, 285 U.S. 480, 52 S. Ct. 424, 76 L. Ed. 893, 1932 U.S. LEXIS 448 (1932).

Determination by commissioner that proceeds of tax exempt bonds should be included by corporation in determining net earnings tax after prior commissioners for nine years had held that same were not required to be included did not violate U.S. Const. art. 1, § 10, cl. 1. National Life & Accident Ins. Co. v. Dempster, 168 Tenn. 446, 79 S.W.2d 564, 1934 Tenn. LEXIS 77 (1934).

Private Act of 1935 which changed corporate limits of Oneida so as to exclude property of factory from town limits did not violate federal or state constitution in that it impaired obligation of town to holders of town bonds where assessed value of property was still sufficient to meet obligation to bondholders. Oneida v. Pearson Hardwood Flooring Co., 169 Tenn. 449, 88 S.W.2d 998, 1935 Tenn. LEXIS 68 (1935), superseded by statute as stated in, State ex rel. Vicars v. Kingsport, 659 S.W.2d 367, 1983 Tenn. App. LEXIS 707 (Tenn. Ct. App. 1983).

Where city entered into contract with Tennessee Valley Authority in 1938 pursuant to authority granted it by Acts 1935 (E. S.), ch. 33, § 4 wherein it agreed to devote surplus revenue from resale of electric power to purchase or retirement before maturity of 1936 bonds, an ordinance enacted in 1941 and Private Acts 1941, ch. 357 providing for charging of rates sufficient to take care of 1941 bond issue violated U.S. Const. art. 1, § 10, cl. 1 prohibiting impairment of contract by a state. Tennessee Valley Authority v. Lenoir City, 72 F. Supp. 457, 1947 U.S. Dist. LEXIS 2538 (D. Tenn. 1947).

Former section 67-4-805 of the excise tax law, which requires the taxpayer to include the earnings from tax exempt obligations of the state, its political subdivisions, and of the United States in the calculation of net income, does not impair the obligation of the contracts formed when state obligations are purchased. First Am. Nat'l Bank v. Olsen, 751 S.W.2d 417, 1987 Tenn. LEXIS 1076 (Tenn. 1987), appeal dismissed, First American Nat'l Bank v. Taylor, 485 U.S. 1001, 108 S. Ct. 1460, 99 L. Ed. 2d 691, 1988 U.S. LEXIS 1821 (1988).

27. — — —Grants.

A grant made in pursuant of a contract cannot be impaired by a repeal of the statute under which the grant was made. Fletcher v. Peck, 10 U.S. 87, 3 L. Ed. 162, 1810 U.S. LEXIS 322 (1810).

A grant from the state is a contract between the state and grantee, and any subsequent act of the legislature which impairs the rights thus acquired, such as the right of the grantee to the exclusive use and enjoyment of the property granted subject to the limitations of such taxes and burdens as were customary for the good of society before the formation of the constitution, is unconstitutional and void. Nelson v. Allen, 9 Tenn. 360, 1830 Tenn. LEXIS 27 (1830).

If the statute of a state confirming a grant of land made by a former sovereign provides for a survey to ascertain metes and bounds, the making of a survey, and the filing of field notes which are not approved, do not amount to a contract. Sullivan v. Texas, 207 U.S. 416, 28 S. Ct. 215, 52 L. Ed. 274, 1908 U.S. LEXIS 1410 (1908).

28. — — —Loans.

Loans contracted under acts of the legislature of the state of Indiana for the benefit of the Wabash and Erie Canal, are contracts which the state could not impair. Trustees of Wabash & Erie Canal Co. v. Beers, 67 U.S. 448, 17 L. Ed. 327, 1862 U.S. LEXIS 253 (1862).

29. — — —Municipalities.

Act extending town limits is not in the nature of a contract and may be changed at pleasure of the lawmaking power. McCallie v. Chattanooga, 40 Tenn. 317, 1859 Tenn. LEXIS 87 (1859).

It is not an impairment of the obligation of contract for the legislature to provide that territory annexed to a city should not be taxed for obligations of the city incurred before such annexation. United States v. Memphis, 97 U.S. 284, 24 L. Ed. 937, 1877 U.S. LEXIS 1775 (1877).

Refusal of a city to pay a debt, in the absence of legislative authority, is not an impairment of the contract. City of Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title & Trust Co., 197 U.S. 178, 25 S. Ct. 420, 49 L. Ed. 713, 1905 U.S. LEXIS 1203 (1905).

Impairment of contracts by the dissolution or abrogation of municipal corporations. Graham v. Folsom, 200 U.S. 248, 26 S. Ct. 245, 50 L. Ed. 464, 1906 U.S. LEXIS 1473 (1906).

A municipal ordinance prohibiting the hauling of freight cars on railway tracks in a city street impairs the contract under which the track was located. Southern Pac. Co. v. Portland, 227 U.S. 559, 33 S. Ct. 308, 57 L. Ed. 642, 1913 U.S. LEXIS 2331 (1913).

30. — — —Public Offices.

The law fixing the compensation to be allowed for the discharge of the duties of an office does not constitute a contract with the officer who may be appointed within the meaning of the federal constitution. He is at liberty to relinquish office at any time and he assumes office with the understanding that his compensation is subject to legislative control. Haynes v. State, 22 Tenn. 480, 1842 Tenn. LEXIS 134, 39 Am. Dec. 187 (Tenn. Dec. 1842).

The appointment to an office with a fixed compensation does not amount to a contract. Butler v. Pennsylvania, 51 U.S. 402, 13 L. Ed. 472, 1850 U.S. LEXIS 1473 (1850).

The office of public printer was held as a public trust, subject to the power of the legislature to discontinue it at any time or to be resigned at the incumbent's pleasure at any time and not as a contract protected from impairment by U.S. Const. art. 1, § 10. Jones, Purvis & Co. v. Hobbs, 63 Tenn. 113, 1874 Tenn. LEXIS 217 (1874).

If a statute limits the power of officers to fix water rates at a minimum rate, a subsequent statute authorizing a reduction of such rate to a lower sum is not an impairment of a contract within the meaning of the federal constitution. Stanislaus County v. San Joaquin & King's River Canal & Irrigation Co., 192 U.S. 201, 24 S. Ct. 241, 48 L. Ed. 406, 1904 U.S. LEXIS 1004 (1904).

Where the 1975 enactment of § 8-3935 (see tables volume for recodification) and § 8-3951 (now § 8-36-102) altered the retirement benefit base for plaintiff judges who retired at the time a more favorable base under § 17-313 (see volume 3 appendix) and former § 8-3935 was in effect, this impaired the state's contractual obligations in violation of Tenn. Const. art. I, § 20 and U.S. Const. art. 1, § 10 and the pertinent parts of these new sections are void as to plaintiffs. Miles v. Tennessee Consol. Retirement System, 548 S.W.2d 299, 1976 Tenn. LEXIS 509 (Tenn. 1976).

Where the 1975 enactment of § 8-3951 (now § 8-36-102) and § 8-3935 (see tables volume for recodification) altered the retirement benefit base for plaintiff judges who were elected and took office at the time a more favorable base under § 17-313 (see volume 3 appendix) and former § 8-3935 was in effect, this decreased the judges' compensation in violation of Tenn. Const. art. VI, § 7 and impaired the state's contractual obligations in violation of Tenn. Const. art. I, § 20 and U.S. Const. art. 1, § 10, and the pertinent parts of these new sections are void as to plaintiffs. Miles v. Tennessee Consol. Retirement System, 548 S.W.2d 299, 1976 Tenn. LEXIS 509 (Tenn. 1976).

Except as affected by a tenure or civil service system, a public employee ordinarily is not deemed to have a contract of employment within the meaning of the “impairment of contracts” provisions of the state and federal constitutions. Blackwell v. Quarterly County Court, 622 S.W.2d 535, 1981 Tenn. LEXIS 491 (Tenn. 1981).

Except as otherwise provided by the state constitution, those holding elected or appointive offices for a definite term have no fixed rate of compensation or guaranteed salary which is beyond modification by appropriate action of the public employer. Blackwell v. Quarterly County Court, 622 S.W.2d 535, 1981 Tenn. LEXIS 491 (Tenn. 1981).

31. — — —Schools.

Appropriation of lands by state for school use forever, in conformity with a federal act, created contract obligations and impressed a trust on the lands for the residents of the townships containing the lands which obligations and trust were violated by act directing lands to be sold. Lowry v. Francis, 10 Tenn. 534, 1831 Tenn. LEXIS 11 (1831).

Where Private Acts 1937, ch. 800 providing for civil service system for teachers of the city of Knoxville specified the grounds on which a teacher might be discharged, failure of such to specify marriage of a woman teacher as one of the grounds did not impair the obligations of contract or amount to a retrospective law with reference to teachers hired by the school board subject to provisions of its bylaws that marriage would constitute grounds for dismissal since the board cannot set up a regulation or bylaw contrary to a legislative enactment. Knoxville v. State, 175 Tenn. 159, 133 S.W.2d 465, 1939 Tenn. LEXIS 26 (1939).

32. — —Corporate Contracts.

Defendants failed to show a substantial impairment of their medicaid contracts with Tennessee following implementation of the remedial plan to correct medicaid abuses. Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

Where radiologists applied for a certificate of need to perform outpatient diagnostic imaging services in competition with hospital, and the hospital authority's board of trustees opposed the certificate of need application and filed an action for declaratory judgment seeking a declaration of the right of the hospital to close the staff of its imaging department by means of an exclusive provider contract, the trial court properly granted the hospital authority's motion for summary judgment, determining that the hospital authority had the right to close the staff of the hospital's imaging department because: (1) T.C.A. § 7-57-502(c) and T.C.A. § 7-57-603 and the medical staff bylaws permitted the hospital authority to close the staff of the hospital's imaging department by means of an exclusive provider contract; and (2) Radiologists were not legally or constitutionally entitled to a hearing, pursuant to U.S. Const. art. 1, § 10, U.S. Const. amend. 14, and Tenn. Const. art. I, § 20, if their clinical privileges were terminated upon the execution of such a contract. City of Cookeville v. Humphrey, 126 S.W.3d 897, 2004 Tenn. LEXIS 130 (Tenn. 2004).

33. — — —Admission of Foreign Corporations.

Statutes requiring foreign corporations to do certain things in order to be allowed to do business in a state will not impair obligations of contracts executed before such statutes took effect as to business to be transacted after such statutes are in force. Diamond Glue Co. v. United States Glue Co., 187 U.S. 611, 23 S. Ct. 206, 47 L. Ed. 328, 1903 U.S. LEXIS 1678 (1903).

Foreign corporation admitted to state on payment of fees and allowed to transact business, limitation of power of state to impose other taxes. American Smelting & Ref. Co. v. Colorado, 204 U.S. 103, 27 S. Ct. 198, 51 L. Ed. 393, 1907 U.S. LEXIS 1533, 9 Ann. Cas. 978 (1907).

When foreign corporations are permitted to transact business in a state on specified conditions, statutes providing for the revocation of such permits for a violation of such conditions do not impair the obligation of contracts. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530, 1909 U.S. LEXIS 1817 (1909).

34. — — —Corporate Charters.

35. — — — —Acceptance.

Corporate charter, after acceptance, is inviolable between the state and the corporation as it is also between the corporation and stockholders; and neither can disregard its obligations, or alter its essential franchises without the unanimous concurrence of the stockholders. Woodfork v. Union Bank, 43 Tenn. 488, 1866 Tenn. LEXIS 79 (1866).

Legislative amendments proposed to charter of a private corporation, which are merely ancillary to the main design of the corporation, are binding on all the corporators if accepted by a majority thereof, but if they are fundamental changes, acceptance must be unanimous. Woodfork v. Union Bank, 43 Tenn. 488, 1866 Tenn. LEXIS 79 (1866).

36. — — — —Alteration or Change.

Where a statute authorized the formation of a college corporation, and its location at a certain point and funds were provided for the support of a college by private individuals, it was held that the legislature might afterwards direct the removal of the college when there was no provision fixing its permanent location at the place where first established, as there was no impairment of any contract. Bryan v. Board of Educ., 151 U.S. 639, 14 S. Ct. 465, 38 L. Ed. 297, 1894 U.S. LEXIS 2087 (1894).

If, in accordance with the articles of association, and the law governing such organizations, the business of an insurance company is changed from one plan to another, there is no such impairment of the contract rights where statutes or charters to give them cause for complaint. Wright v. Minnesota Mut. Life Ins. Co., 193 U.S. 657, 24 S. Ct. 549, 48 L. Ed. 832, 1904 U.S. LEXIS 906 (1904).

Provisions of a law incorporating a corporation cannot be changed where such provisions constitute a contract binding on the state. In re Opinion of Justices, 261 Mass. 556, 159 N.E. 70, 1927 Mass. LEXIS 1495 (1927).

37. — — — —Amendment.

Reservation of right to alter or repeal all charters granted by an act granting charters in severalty to various corporations, distinctly appearing in any part of the act, applies equally to every charter created thereby, whether the section granting the charter precede or succeed that containing the reservation. Ferguson v. Miners & Mfrs' Bank, 35 Tenn. 609, 1856 Tenn. LEXIS 35 (1856).

The legislature has the right to change, alter or repeal the charter of a public municipal corporation at pleasure. Lynch v. Lafland, 44 Tenn. 96, 1867 Tenn. LEXIS 17 (1867). See also Memphis v. Memphis Water Co., 52 Tenn. 495, 1871 Tenn. LEXIS 284 (1871).

When states have power to amend charters of corporations, statutes exempting corporations from taxation may be repealed, and other changes in the charters may be made. Tomlinson v. Jessup, 82 U.S. 454, 21 L. Ed. 204, 1872 U.S. LEXIS 1274 (1872); Miller v. State, 82 U.S. 478, 21 L. Ed. 98, 1872 U.S. LEXIS 1278 (1873).

If the charter of a city water company is not exclusive, but is subject to legislative control, there is no impairment of a contract by a subsequent statute authorizing the city to erect its own waterworks. Newburyport Water Co. v. Newburyport, 193 U.S. 561, 24 S. Ct. 553, 48 L. Ed. 795, 1904 U.S. LEXIS 897 (1904).

If a legislature has power to alter or amend a charter, the enactment of a law permitting a mutual life association to reincorporate as a regular life insurance company does not impair contracts existing between such association and its policyholders. Polk v. Mutual Reserve Fund Life Ass'n, 207 U.S. 310, 28 S. Ct. 65, 52 L. Ed. 222, 1907 U.S. LEXIS 1226 (1907).

If a state has the right to amend the charter of a college, an amendment prohibiting the teaching of white and negro children in the same school does not impair a contract. Berea College v. Kentucky, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81, 1908 U.S. LEXIS 1526 (1908).

38. — — — —Consolidation or Reorganization.

The consolidation of two railroads into a new corporation which should have all the rights, powers and privileges of one of the consolidating companies carries to the new company the right of exemption from taxation provided in the charter of the former company. Tennessee v. Whitworth, 117 U.S. 139, 6 S. Ct. 649, 29 L. Ed. 833, 1886 U.S. LEXIS 1821 (1886).

Provisions in the statute of a state providing for creating a new corporation upon the reorganization of a railroad by a purchaser at a foreclosure sale do not constitute a contract within the meaning of the provision of the federal constitution which prohibits the impairment of contracts. Grand Rapids & Ind. Ry. v. Osborn, 193 U.S. 17, 24 S. Ct. 310, 48 L. Ed. 598, 1904 U.S. LEXIS 977 (1904).

Decisions relating to the impairment of contract rights where statutes or charters are involved, and also the rights of corporations which are consolidations of other corporations or have succeeded to their rights, see People's Gas Light & Coke Co. v. Chicago, 194 U.S. 1, 24 S. Ct. 520, 48 L. Ed. 851, 1904 U.S. LEXIS 913 (1904); Pacific Elec. Ry. v. Los Angeles, 194 U.S. 112, 24 S. Ct. 586, 48 L. Ed. 896, 1904 U.S. LEXIS 878 (1904); Cleveland v. Cleveland City Ry., 194 U.S. 517, 24 S. Ct. 756, 48 L. Ed. 1102, 1904 U.S. LEXIS 789, 15 Ohio F. Dec. 703 (1904).

39. — — — —Debts.

If, in chartering a bank, a state provides that the bills of the bank shall be received for all debts due the state, this obligation cannot be impaired. Woodruff v. Trapnall, 51 U.S. 190, 13 L. Ed. 383, 1850 U.S. LEXIS 1462 (1850); Furman v. Nichol, 75 U.S. 44, 19 L. Ed. 370, 1868 U.S. LEXIS 1082 (1869).

40. — — — —Illegality.

If the contract of a corporation is ultra vires, legislation in conflict therewith does not impair the obligations of a contract. New Orleans v. New Orleans Water Works Co., 142 U.S. 79, 12 S. Ct. 142, 35 L. Ed. 943, 1891 U.S. LEXIS 2569 (U.S. Dec. 14, 1891).

If a corporate charter contains a provision that the legislature has no power to grant, such provision is not protected by the contract clause of the constitution. Texas & N.O.R.R. v. Miller, 221 U.S. 408, 31 S. Ct. 534, 55 L. Ed. 789, 1911 U.S. LEXIS 1744 (1911).

41. — — — —Municipal Charters.

Municipal charters are not contracts that will prevent the consolidation of municipal corporations and the levy of taxes upon the citizens of a new corporation for its support. Hunter v. Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151, 1907 U.S. LEXIS 1211 (1907).

42. — — — —Municipal Privileges.

Legislative grant to a private corporation for its exclusive use of a privilege formerly enjoyed by a municipal corporation, for a term of years, is, during such term, a valid contract beyond the reach of subsequent legislative interference. Memphis v. Memphis Water Co., 52 Tenn. 495, 1871 Tenn. LEXIS 284 (1871).

If a corporation is granted by charter the right to use the streets of a city on specified condition, the city cannot revoke such right so long as the terms of the grant are complied with. Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (1912).

43. — — — —Railroads.

Provisions in the charter of a railroad company regulating the manner of taking land for the use of the road are not in the nature of a contract, but may be altered by subsequent legislation. Mississippi R. Co. v. McDonald, 59 Tenn. 54, 1873 Tenn. LEXIS 27 (1873).

A charter provision exempting a railroad from any tax which would reduce its dividends below eight percent is a contract and cannot be impaired by later action of the legislature. Mobile & O.R.R. v. Tennessee, 153 U.S. 486, 14 S. Ct. 968, 38 L. Ed. 793, 1894 U.S. LEXIS 2198 (1894).

If a general tax law exempts railroads afterwards built from taxation for a specified period, such provision is not a contract within the meaning of the federal constitution prohibiting the impairing of the obligation of contracts. Wisconsin & M. Ry. v. Powers, 191 U.S. 379, 24 S. Ct. 107, 48 L. Ed. 229, 1903 U.S. LEXIS 1459 (1903).

44. — — — —Taxation.

Legislature had power under Constitution of 1834 to grant charters of incorporation, with exemptions from taxation, binding upon the state, so that the charter, after acceptance, became a contract and irrepealable. Knoxville & O. R. R. Co. v. Hicks, 68 Tenn. 442, 1877 Tenn. LEXIS 43 (1877).

Where a bank charter provides an annual tax which shall be in lieu of all other taxes, it creates a contract which cannot be impaired by other taxes. Farrington v. Tennessee, 95 U.S. 679, 24 L. Ed. 558, 1877 U.S. LEXIS 2222 (1877), superseded by statute as stated in, Fla. Bar v. Behm, 2010 Fla. LEXIS 1044 (Fla. 2010).

The provision of the charter of the Bank of Tennessee in 1838, that its bank notes should be accepted in payment of taxes, was a contract which could not be impaired by a constitutional provision forbidding the acceptance for taxes, of notes issued during the insurrectionary period of the Civil War. Keith v. Clark, 97 U.S. 454, 24 L. Ed. 1071, 1878 U.S. LEXIS 1476 (1878).

A provision in a corporate charter, not prohibited by the constitution, exempting its property from taxation, is a valid contract, and, under U.S. Const. art. 1, § 10, cl. 1 cannot be impaired by the later imposition of taxes on such property. Louisville & N.R.R. v. Gaines, 3 F. 266, 1880 U.S. App. LEXIS 2230 (M.D. Tenn. 1880).

In the absence of express exemption from taxation, a charter is taken subject to the same right of the state to tax the license as that to tax other property. Memphis Gas Light Co. v. Taxing Dist., 109 U.S. 398, 3 S. Ct. 205, 27 L. Ed. 976, 1883 U.S. LEXIS 981 (1883).

If a state, in granting a charter to a corporation, exempts its property from taxation, a tax on such property cannot afterwards be imposed in violation of the terms of such charter. Mobile & O.R.R. v. Tennessee, 153 U.S. 486, 14 S. Ct. 968, 38 L. Ed. 793, 1894 U.S. LEXIS 2198 (1894); Bank of Commerce v. Tennessee, 163 U.S. 416, 16 S. Ct. 1113, 41 L. Ed. 211, 1896 U.S. LEXIS 2278 (1896).

A provision in a charter exempting the company from taxes is not a contract where the corporation did not organize and accept the charter until after a constitutional prohibition against such exemption became effective. Planters' Ins. Co. v. Tennessee, 161 U.S. 193, 16 S. Ct. 466, 40 L. Ed. 667, 1896 U.S. LEXIS 2152 (1896).

A clause in the charter of a corporation exempting property from taxation does not relieve such property from assessments for local improvements. Ford v. Delta & Pine Land Co., 164 U.S. 662, 17 S. Ct. 230, 41 L. Ed. 590, 1897 U.S. LEXIS 1699 (1897).

45. — — — —Limitation of Taxation.

Where the purposes for which a corporation may hold property are specified in connection with an exemption from taxation, the limitation of taxation applies only to property acquired for such purposes, and does not apply to property not used in its business. Bank of Commerce v. Tennessee, 104 U.S. 493, 26 L. Ed. 810, 1881 U.S. LEXIS 2033 (1881).

If rights depend upon the levy and collection of taxes, a repeal of all laws providing for the collection of taxes is an impairment of the obligations of the contract. Louisiana ex rel. Nelson v. Police Jury, 111 U.S. 716, 4 S. Ct. 648, 28 L. Ed. 574, 1884 U.S. LEXIS 1827 (1884); Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S. Ct. 329, 29 L. Ed. 587, 1885 U.S. LEXIS 1899 (1885).

If a charter of a corporation exempts property of the corporation from taxation so long as it belongs to the corporation, the imposition of taxes upon the property of the corporation that it has leased is not an impairment of the contract created by the charter. Jetton v. University of South, 208 U.S. 489, 28 S. Ct. 375, 52 L. Ed. 584, 1908 U.S. LEXIS 1460 (1908).

If the property of a corporation is by its charter exempt from taxation, a law imposing a tax on the franchise of the corporation impairs the obligation of a contract. Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 30 S. Ct. 242, 54 L. Ed. 544, 1910 U.S. LEXIS 1908 (1910).

Additional taxation of railway property and franchises as property of a railway company in possession, under leases permitted and encouraged by state legislation, must be regarded as a violation of an irrepealable contract exemption in the charter of the lessor railway company from all taxation of its property other than a specified percentage of annual income and impairs contractual obligations. Wright v. Central of Ga. Ry., 236 U.S. 674, 35 S. Ct. 471, 59 L. Ed. 781, 1915 U.S. LEXIS 1709 (1915); Wright v. Louisville & N.R.R., 236 U.S. 687, 35 S. Ct. 475, 59 L. Ed. 788, 1915 U.S. LEXIS 1710 (1915).

46. — — — —Effect of Sale on Taxation.

The sale of the property of a railroad corporation on lien foreclosure does not necessarily pass with it a charter exemption of the railroad company from taxation. Wilson v. Gaines, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881).

Corporate immunity from taxation under statute will not pass merely by the conveyance of the property and franchises. The word privileges does not in itself include exemption from taxation. Picard v. East Tenn., Va. & Ga. R.R., 130 U.S. 637, 9 S. Ct. 640, 32 L. Ed. 1051, 1889 U.S. LEXIS 1783 (1889).

The right granted by a state statute to purchasers of the property of a corporation to organize a new corporation does not constitute a contract with the state, nor prohibit the taxation of such new corporation. People ex rel. Schurz v. Cook, 148 U.S. 397, 13 S. Ct. 645, 37 L. Ed. 498, 1893 U.S. LEXIS 2242 (1893).

The sale by a receiver of a bank charter containing an exemption from taxation does not give the purchaser a similar right to exemption, when before the sale, a constitutional provision had been adopted prohibiting such exemption. The sale at most gave only a right to reorganize under the then existing laws. Mercantile Bank v. Tennessee ex rel. Memphis, 161 U.S. 161, 16 S. Ct. 461, 40 L. Ed. 656, 1896 U.S. LEXIS 2149 (1896).

Where a corporation was given charter immunity from taxation, and thereafter a second company was granted all the rights, privileges, and immunities of the first, and thereafter a third was granted all the rights and privileges of the first, the omission of “immunities” raises a doubt as to the exemption passing to the third corporation, and the doubt will be resolved in favor of the state. Phoenix Fire & Marine Ins. Co. v. Tennessee, 161 U.S. 174, 16 S. Ct. 471, 40 L. Ed. 660, 1896 U.S. LEXIS 2150 (1896). See also Railroad Co. v. Gaines, 97 U.S. 697, 24 L. Ed. 1091, 1878 U.S. LEXIS 1499 (1878).

47. — — — —Stockholders and Directors.

Laws cannot be passed relieving stockholders from liability on present contracts. Hawthorne v. Calef, 69 U.S. 10, 17 L. Ed. 776, 1864 U.S. LEXIS 403 (1864).

If a corporation is formed under a state law, a change of the law regulating the transfer of shares of stock does not impair the obligation of a contract. Henley v. Myers, 215 U.S. 373, 30 S. Ct. 148, 54 L. Ed. 240, 1910 U.S. LEXIS 1845 (1910).

A constitutional liability of corporate directors for misappropriations of officers creates a contract right with creditors, and a repeal of such provision does not relieve directors for losses already existing. Coombes v. Getz, 285 U.S. 434, 52 S. Ct. 435, 76 L. Ed. 866, 1932 U.S. LEXIS 786 (1932).

48. — — —Exclusive Franchises.

If no exclusive privileges are granted to a corporation, other charters may be granted that conflict in interest with the first. Turnpike Co. v. Maryland, 70 U.S. 210, 18 L. Ed. 180, 1865 U.S. LEXIS 700 (1865); Hamilton Gas Light & Coke Co. v. Hamilton City, 146 U.S. 258, 13 S. Ct. 90, 36 L. Ed. 963, 1892 U.S. LEXIS 2195, 7 Ohio F. Dec. 358 (U.S. Nov. 21, 1892).

When a grant of franchise is not by its terms exclusive, the legislature may grant a similar freedom of erecting a rival way or structure, the result of which may be to impair greatly or even destroy totally the value of the former grant. Such damage is not a taking of the former franchise which entitles its owner to compensation. Hydes Ferry Tpk. Co. v. Davidson County, 91 Tenn. 291, 18 S.W. 626, 1891 Tenn. LEXIS 100 (1891).

Legislature could grant to a company right to succeed to all the rights, privileges and immunities of former company with exclusive franchise so that, upon acceptance, the charter became an inviolable contract between the state and such company. Nashville, M. & S. Turnpike Co. v. Davidson County, 106 Tenn. 258, 61 S.W. 68, 1900 Tenn. LEXIS 160 (Tenn. 1900).

49. — — — —Bridges.

Grant to erect a toll bridge, and providing that no other bridges should be erected within a specified distance, is a contract. Binghamton Bridge, 70 U.S. 51, 18 L. Ed. 137, 1865 U.S. LEXIS 687 (1866).

50. — — — —Ferries.

An exclusive lease or ferry franchise given by the state is not impaired by the state's construction of a free bridge near the ferry. Larson v. South Dakota, 278 U.S. 429, 49 S. Ct. 196, 73 L. Ed. 441, 1929 U.S. LEXIS 14 (1929).

51. — — — —Truck Lines.

Where certificates of convenience and necessity granted complainant truck lines expressed no exclusive authority and conferred no exclusive franchise for the operation of truck lines, the provisions of Acts 1937, ch. 167 authorizing operators having two or more certificates of necessity with a common point of destination to transfer freight between the extreme point of termini did not impair the obligation of any contract of complainants or deprive them of any vested right. Johnson Freight Lines v. Davis, 174 Tenn. 51, 123 S.W.2d 820, 1938 Tenn. LEXIS 62 (1939).

52. — — — —Turnpike Companies.

Charter provision of turnpike company that it should not be lawful to open or establish any other road so near as to injure or prejudice its interests is sufficiently definite to become an inviolable contract between state and the company. Nashville, M. & S. Turnpike Co. v. Davidson County, 106 Tenn. 258, 61 S.W. 68, 1900 Tenn. LEXIS 160 (Tenn. 1900).

A turnpike company's exclusive charter privilege, though an inviolable contract with the state, must yield to public use, on just compensation; and opening of a new road by county, extending from another turnpike to this company's road, at a point beyond its principal tollgate, which would greatly impair its revenue, should be restrained only until just compensation has been paid for such injury. Nashville, M. & S. Turnpike Co. v. Davidson County, 106 Tenn. 258, 61 S.W. 68, 1900 Tenn. LEXIS 160 (Tenn. 1900).

53. — — —Municipal Franchises.

Franchises granted to corporations are contracts protected by the constitution. New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 6 S. Ct. 252, 29 L. Ed. 516, 1885 U.S. LEXIS 1879 (1885); New Orleans Water-Works Co. v. Rivers, 115 U.S. 674, 6 S. Ct. 273, 29 L. Ed. 525, 1885 U.S. LEXIS 1880 (1885); Louisville Gas Co. v. Citizens' Gas Co., 115 U.S. 683, 6 S. Ct. 265, 29 L. Ed. 510, 1885 U.S. LEXIS 1881 (1885).

The grant by a city of a charter to a corporation for a specified period, with the right to charge designated sums for services, constitutes a contract, and the city cannot, before the expiration of the charter, reduce the amount that may be charged for services. City of Minneapolis v. Minneapolis St. Ry., 215 U.S. 417, 30 S. Ct. 118, 54 L. Ed. 259, 1910 U.S. LEXIS 1850 (1910).

The grant by a municipal corporation of a franchise, when accepted, constitutes a contract, and the corporation cannot repeal the ordinance granting such franchise when its operation is not injurious to public health or morals. Grand Trunk W. Ry. v. City of S. Bend, 227 U.S. 544, 33 S. Ct. 303, 57 L. Ed. 633, 1913 U.S. LEXIS 2330 (1913).

Franchises received from the county without specifying any limits of time are construed by the supreme court of the United States, where there are no controlling provisions in the state constitution or statutes, or prior adjudications by its courts to the contrary, to be contracts not subject to annulment. Northern Ohio Traction & Light Co. v. Ohio ex rel. Pontius, 245 U.S. 574, 38 S. Ct. 196, 62 L. Ed. 481, 1918 U.S. LEXIS 2108 (1918).

54. — — — —Electric Power.

Permit granted by a municipal corporation to place wires in the city streets creates a contract which cannot be impaired or revoked, unless such franchise is lost by misuse or nonuse. New York Electric Lines Co. v. Empire City Subway Co., 235 U.S. 179, 35 S. Ct. 72, 59 L. Ed. 184, 1914 U.S. LEXIS 1012 (1914).

Franchises granted by the city of Chattanooga to electric power companies giving such companies the right to use the streets for the erection of power lines for the purpose of conducting electricity to customers, and which were silent as to the length of duration of such right, were property rights protected by U.S. Const. art. 1, § 10, so that they could not be terminated upon reasonable notice. Chattanooga v. Tennessee Electric Power Co., 172 Tenn. 524, 112 S.W.2d 385, 1937 Tenn. LEXIS 95 (1938).

55. — — — —Exclusive Right.

A legislative grant of an exclusive right to supply articles to a municipal corporation is such a contract as cannot be impaired. New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 6 S. Ct. 252, 29 L. Ed. 516, 1885 U.S. LEXIS 1879 (1885); New Orleans Water-Works Co. v. Rivers, 115 U.S. 674, 6 S. Ct. 273, 29 L. Ed. 525, 1885 U.S. LEXIS 1880 (1885); Louisville Gas Co. v. Citizens' Gas Co., 115 U.S. 683, 6 S. Ct. 265, 29 L. Ed. 510, 1885 U.S. LEXIS 1881 (1885); St. Tammany Water Works v. New Orleans Water Works, 120 U.S. 64, 7 S. Ct. 405, 30 L. Ed. 563, 1887 U.S. LEXIS 1941 (1887); Walla Walla City v. Walla Walla Water Co., 172 U.S. 1, 19 S. Ct. 77, 43 L. Ed. 341, 1898 U.S. LEXIS 1637 (1898).

If, under the statute of a state, a municipal corporation may grant a franchise for a fixed period to supply the inhabitants with articles of necessity, or such corporations may erect plant to supply such articles, the grant of a franchise for such purpose is not an implied contract that such corporation will not erect a plant to supply the same articles during the life of such franchise. Joplin v. Southwest Missouri Light Co., 191 U.S. 150, 24 S. Ct. 43, 48 L. Ed. 127, 1903 U.S. LEXIS 1472 (1903); Helena Water Works Co. v. Helena, 195 U.S. 383, 25 S. Ct. 40, 49 L. Ed. 245, 1904 U.S. LEXIS 728 (1904).

If a contract made by a city with a water company reserves to the city the right to make rules and regulations in accordance with law, and the law applying to such city is afterwards changed, regulations adopted by such city in accordance with such changed law are not an impairment of the contract with such company. Owensboro v. Owensboro Waterworks Co., 191 U.S. 358, 24 S. Ct. 82, 48 L. Ed. 217, 1903 U.S. LEXIS 1456 (1903).

A valid exclusive grant by a city to a company to supply the citizens with water prohibits the city from furnishing water in competition. Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453, 26 S. Ct. 660, 50 L. Ed. 1102, 1906 U.S. LEXIS 1547, 6 Ann. Cas. 253 (1906).

56. — — — —Street Railway.

Payment by a street railway company for the use of the streets of a city does not of itself amount to a contract that will prohibit the city from imposing a license tax on such company. City of St. Louis v. United Rys., 210 U.S. 266, 28 S. Ct. 630, 52 L. Ed. 1054, 1908 U.S. LEXIS 1508 (1908).

A street railway company of which franchise has expired has no implied contract right to remain in the streets, therefore, the municipality may require the company to remove its tracks and property within a reasonable time. Detroit United Ry. v. City of Detroit, 229 U.S. 39, 33 S. Ct. 697, 57 L. Ed. 1056, 1913 U.S. LEXIS 2421 (1913).

Where a city is authorized, and a contract is entered into with a street railway company for transportation at certain rates, it is an impairment of contract to require the railway to serve at lower rates, or to require the citizens to pay higher rates. Railroad Comm'n v. Los Angeles Ry., 280 U.S. 145, 50 S. Ct. 71, 74 L. Ed. 234, 1929 U.S. LEXIS 779 (1929).

57. — — — —Telegraph and Telephone.

The power of municipal corporations to fix telephone rates and rates of other public service corporations considered, and whether the fixing of such rates impairs contract obligations is decided in Home Tel. & Tel. Co. v. City of L.A., 211 U.S. 265, 29 S. Ct. 50, 53 L. Ed. 176, 1908 U.S. LEXIS 1543 (1908).

Consideration of municipal ordinances requiring public service corporations to remove poles and wires from streets, and when such ordinances will be held to impair the obligations of contracts. City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U.S. 58, 33 S. Ct. 988, 57 L. Ed. 1389, 1913 U.S. LEXIS 2678 (1913); Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 33 S. Ct. 967, 57 L. Ed. 1410, 1913 U.S. LEXIS 2681 (1913).

The authority of a city to repeal ordinances and to regulate the streets, alleys, and sidewalks does not confer authority to revoke contractual rights granting to a telephone company the right to place and maintain its poles and wires in the city streets. City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U.S. 58, 33 S. Ct. 988, 57 L. Ed. 1389, 1913 U.S. LEXIS 2678 (1913).

58. — — — —Water.

An agreement by a city with a water company that the city would not grant to any other person or corporation a contract or privilege to furnish water to the city, is not impaired by the city thereafter establishing its own municipal water plant, as there is no such exclusion in the grant, and none will be implied against a governmental agency. Knoxville Water Co. v. Knoxville, 200 U.S. 22, 26 S. Ct. 224, 50 L. Ed. 353, 1906 U.S. LEXIS 1452 (1906).

The obligation of a municipal ordinance granting an irrevocable easement to lay in the city streets and repair the pipes of a water system is impaired by a subsequent ordinance requiring the payment to the city of a monthly rental for use and occupation of the streets. Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U.S. 84, 33 S. Ct. 997, 57 L. Ed. 1400, 1913 U.S. LEXIS 2679 (1913), superseded by statute as stated in, RUI One Corp. v. City of Berkeley, 371 F.3d 1137, — FED App. (6th Cir.) —, 2004 U.S. App. LEXIS 11771 (9th Cir. Cal. 2004).

A municipality does not impair an exclusive franchise, granted to a private waterworks company for a definite term, by issuing bonds and constructing its own waterworks system which is not to be put into operation until the franchise has expired. Mayor of Vicksburg v. Henson, 231 U.S. 259, 34 S. Ct. 95, 58 L. Ed. 209, 1913 U.S. LEXIS 2565 (1913).

59. — —Insurance.

The repeal of a statute requiring life insurance companies to notify policyholders at least thirty days before forfeiture shall be effective did not impair any obligation of contract, as it did not become a part of the insurance contract. Rosenplanter v. Provident Sav. Life Assurance Soc., 96 F. 721, 1899 U.S. App. LEXIS 2544 (6th Cir. 1899).

An insurance contract is not impaired by a subsequent state law, providing for damages where the refusal of an insurance company to pay loss was found not to have been in good faith. Supreme Ruling of Fraternal Mystic Circle v. Snyder, 227 U.S. 497, 33 S. Ct. 292, 57 L. Ed. 611, 1913 U.S. LEXIS 2324 (1913).

A Tennessee statute providing for the recovery of reasonable compensation for damages on account of refusal in bad faith to pay insurance policy does not impair the insurance contract, but only gives a remedy for dishonest attempts to avoid legal duties. Supreme Ruling of Fraternal Mystic Circle v. Snyder, 227 U.S. 497, 33 S. Ct. 292, 57 L. Ed. 611, 1913 U.S. LEXIS 2324 (1913).

60. — —Interest.

States may, by statute, reduce the rate of interest upon judgments previously obtained. Morley v. Lake Shore & M.S. Ry., 146 U.S. 162, 13 S. Ct. 54, 36 L. Ed. 925, 1892 U.S. LEXIS 2185 (U.S. Nov. 14, 1892).

States may regulate the amount of interest, and may fix different rates for different persons or institutions. Griffith v. Connecticut, 218 U.S. 563, 31 S. Ct. 132, 54 L. Ed. 1151, 1910 U.S. LEXIS 2050 (1910).

The obligation of existing contracts between a national bank and its depositors was not impaired by a state law imposing a tax upon interest bearing deposits, paid by the bank upon the average of daily deposits, the bank charging the same to the depositors. Clement Nat'l Bank v. Vermont, 231 U.S. 120, 34 S. Ct. 31, 58 L. Ed. 147, 1913 U.S. LEXIS 2599 (1913).

Interest upon a judgment is a matter of legislative discretion, so far as the constitution of the United States is concerned, where the cause of action is either a tort or a broken contract not itself prescribing interest till payment. Missouri & Ark. Lumber & Mining Co. v. Greenwood Dist., 249 U.S. 170, 39 S. Ct. 202, 63 L. Ed. 538, 1919 U.S. LEXIS 2240 (1919).

61. — —Judgments.

Holders of judgments against a city can compel the taxing officers to collect taxes levied, and apply the proceeds upon the judgments. Meriwether v. Garrett, 102 U.S. 472, 26 L. Ed. 197, 1880 U.S. LEXIS 2056 (Tenn. Dec. 13, 1880). But see Garrett & Sons v. City of Memphis, 5 F. 860, 1881 U.S. App. LEXIS 2004 (C.C.W.D. Tenn. 1881).

The reducing of a demand created by statute to a judgment does not make it such a contract as is protected by the constitution. Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 3 S. Ct. 211, 27 L. Ed. 936, 1883 U.S. LEXIS 972 (1883), superseded by statute as stated in, Tamalunis v. Georgetown, 757 F. Supp. 956, 1991 U.S. Dist. LEXIS 2457 (C.D. Ill. 1991).

62. — —Marriage.

Marriage is not such a contract that states may not provide for the dissolution thereof. Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654, 1888 U.S. LEXIS 1927 (1888).

63. — —Mortgages.

The law in force at the time a mortgage is executed, with all the conditions and limitations it imposes, is the law which determines the force and effect of the mortgage. East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

If, after the rights of a mortgagee under a mortgage have become vested, a statute is passed which deprives him of any substantial right, such statute impairs his contract and is void. Bradley v. Lightcap, 195 U.S. 1, 24 S. Ct. 748, 49 L. Ed. 65, 1904 U.S. LEXIS 815 (1904).

64. — —Redemption.

Statutes that give time for redeeming lands sold under foreclosure of mortgages cannot apply to mortgages executed prior to passage of statutes. Bronson v. Kinzie, 42 U.S. 311, 11 L. Ed. 143, 1843 U.S. LEXIS 314 (1843); Howard v. Bugbee, 65 U.S. 461, 16 L. Ed. 753, 1860 U.S. LEXIS 427 (1860).

Redemption of property sold under judicial proceedings, when laws regulating impair contracts. Barnitz v. Beverly, 163 U.S. 118, 16 S. Ct. 1042, 41 L. Ed. 93, 1896 U.S. LEXIS 2251 (1896).

65. — —Secured Transactions.

Applying T.C.A. § 66-26-116, which was enacted in 1989, to a contract for assignment of rents, executed in 1987, did not retroactively impair the contract rights that vested between the parties when it was signed, so as to violate the contracts clause of the United States and Tennessee constitutions. Creekstone Apts. Assocs. v. Resolution Trust Corp., 165 B.R. 845, 1993 Bankr. LEXIS 2144 (Bankr. M.D. Tenn. 1993), aff'd in part, rev'd in part, Te-Two Real Estate Ltd. Partnership v. Creekstone Apartments Assocs., L.P. (In re Creekstone Apartments Assocs., L.P.), — F. Supp. 2d —, 1995 U.S. Dist. LEXIS 14876 (M.D. Tenn. Sept. 18, 1995).

66. — —Suretyship.

It is not a violation of the obligation of contracts to release prosecution surety or bail and substitute another, there being no contract on the part of him for whose indemnity the surety was taken. Craighead v. State Bank, 19 Tenn. 199, 1838 Tenn. LEXIS 48 (1838).

Acts 1933, ch. 40, amending Acts 1917, ch. 74, § 6, setting aside sureties' obligations on a public contractor's bond, and substituting therefor the obligation on another bond, is unconstitutional as impairing the obligation of a contract, where done without the consent of the obligee in the contractor's bond. International Steel & Iron Co. v. National Surety Co., 297 U.S. 657, 56 S. Ct. 619, 80 L. Ed. 961, 1936 U.S. LEXIS 949 (1936).

Acts 1929, ch. 80, amending Acts 1917, ch. 74, in effect declaring a surety's subsisting obligation unenforceable, violates U.S. Const. art. 1, § 10, prohibiting states from passing any law impairing the obligation of contracts. International Steel & Iron Co. v. National Surety Co., 297 U.S. 657, 56 S. Ct. 619, 80 L. Ed. 961, 1936 U.S. LEXIS 949 (1936).

67. — —Torts.

The right of action the law gives for a tort is not within the protection of the contract clause of the federal or state constitution. Parker v. Savage, 74 Tenn. 406, 1880 Tenn. LEXIS 267 (1880).

68. — —Trusts.

A statute imposing estate tax on the succession arising at death of settlor, under trust deed executed before law was passed, giving life income to settlor, violates U.S. Const. art. 1, § 10 as impairing a contract, since the succession was substantially complete when the deed was executed. Coolidge v. Long, 282 U.S. 582, 51 S. Ct. 306, 75 L. Ed. 562, 1931 U.S. LEXIS 30 (1931).

The beneficiary of a spendthrift trust who acquired title and interest in the trust property prior to the 1943 amendment of § 26-601 (now § 26-4-101) which subjected property of this type to the claims of the state took a vested interest in such property under a rule of property, and such trust property was beyond the reach of the legislature and could not be subjected to the claims of the state. State v. Caldwell, 181 Tenn. 74, 178 S.W.2d 624, 1944 Tenn. LEXIS 346, 151 A.L.R. 1410 (1944).

69. —Means of Impairment.

70. — —General Assembly.

The legislature may, under proper limitations change, modify, enlarge, or restrain the franchises of a public corporation, securing at all times the property to the use of those for whom it was purchased. Woodfork v. Union Bank, 43 Tenn. 488, 1866 Tenn. LEXIS 79 (1866).

Since neither the plaintiff miners nor their predecessor in title was ever conveyed the legal right to strip mine, § 66-5-102 and former § 1544(a)(6)(B) (now § 59-8-205(a)(1)(F)) concerning surface mining of coal did not unconstitutionally affect plaintiffs' contract rights or deprive them of property without due process, for the statutes merely codified the common law governing the construction of deeds and other such contracts. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

71. — —Constitutional Provisions.

States cannot impair the obligation of contracts by constitutional provisions. Railroad Co. v. McClure, 77 U.S. 511, 19 L. Ed. 997, 1870 U.S. LEXIS 1145 (1870); White v. Hart, 80 U.S. 646, 20 L. Ed. 685, 1871 U.S. LEXIS 1379 (1871); County of Moultrie v. Rockingham Ten-Cent Savings-Bank, 92 U.S. 631, 23 L. Ed. 631, 1875 U.S. LEXIS 1799 (1875); New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 6 S. Ct. 252, 29 L. Ed. 516, 1885 U.S. LEXIS 1879 (1885); Bier v. McGehee, 148 U.S. 137, 13 S. Ct. 580, 37 L. Ed. 397, 1893 U.S. LEXIS 2214 (1893); Houston & Tex. Cent. Ry. v. Texas, 170 U.S. 243, 18 S. Ct. 610, 42 L. Ed. 1023, 1898 U.S. LEXIS 1542 (1898).

Where an insurance corporation was granted in its charter exemption from taxes except a tax on corporate stock paid in, and later changed its business under legislative authority to banking, after a constitutional provision had become effective prohibiting such exemption, the constitutional provision was valid, and there was no impairment of any obligation of contract. Memphis City Bank v. Tennessee, 161 U.S. 186, 16 S. Ct. 468, 40 L. Ed. 664, 1896 U.S. LEXIS 2151 (1896).

The grant under state laws of a franchise to a public service corporation constitutes a contract, and the obligation of such contract cannot be impaired by a subsequent amendment to the state constitution. Russell v. Sebastian, 233 U.S. 195, 34 S. Ct. 517, 58 L. Ed. 912, 1914 U.S. LEXIS 1281 (1914).

72. — —Municipal Action.

A resolution of a city council, of a delegated legislative nature, declaring a franchise forfeited for breach thereof, is a law of the state within the meaning of U.S. Const. art. 1, § 10, cl. 1, even though the forfeiture was conditioned on the failure of the grantee to change its course of conduct within 50 days. Iron Mountain R. Co. v. Memphis, 96 F. 113, 1899 U.S. App. LEXIS 2508 (6th Cir. 1899).

A city ordinance of a delegated legislative character is a law of the state within U.S. Const. art. 1, § 10, cl. 1. Cumberland Tel. & Tel. Co. v. City of Memphis, 198 F. 955, 1912 U.S. Dist. LEXIS 1377 (W.D. Tenn. 1912).

73. — —Judicial Decision.

The provision of the constitution prohibiting the passage of state laws impairing the obligations of contracts does not apply to judicial decisions or the acts of state tribunals or officers under statutes in force at the time of the making of a contract. Hanford v. Davies, 163 U.S. 273, 16 S. Ct. 1051, 41 L. Ed. 157, 1896 U.S. LEXIS 2264 (1896).

The mere change of decision of a court is not an impairment of a contract within the meaning of the federal constitution, but there must be a subsequent statute of a state which is upheld or given effect by the state in order to impair a contract. National Mut. Bldg. & Loan Ass'n v. Brahan, 193 U.S. 635, 24 S. Ct. 532, 48 L. Ed. 823, 1904 U.S. LEXIS 904 (1904); Moore-Mansfield Constr. Co. v. Electrical Installation Co., 234 U.S. 619, 34 S. Ct. 941, 58 L. Ed. 1503, 1914 U.S. LEXIS 1114 (1914).

The contract clause of the constitution is not directed against all impairment of contract obligations, but only against such as result from a subsequent exercise of the legislative power of the state, and does not apply to mere errors committed by state courts in construing contracts. Cross Lake Shooting & Fishing Club v. Louisiana, 224 U.S. 632, 32 S. Ct. 577, 56 L. Ed. 924, 1912 U.S. LEXIS 2331 (1912); McCoy v. Union E.R.R., 247 U.S. 354, 38 S. Ct. 504, 62 L. Ed. 1156, 1918 U.S. LEXIS 1918 (1918).

The contract clause prohibits legislative but not judicial action. McCoy v. Union E.R.R., 247 U.S. 354, 38 S. Ct. 504, 62 L. Ed. 1156, 1918 U.S. LEXIS 1918 (1918).

The Tennessee supreme court's decision to abolish the obsolete common law year and a day rule and to apply its decision retroactively did not constitute an unforeseeable judicial enlargement of a criminal statute. The common law rule had been abolished in many other jurisdictions, had never served as a ground of decision in any Tennessee case, had been mentioned favorably in Tennessee only once since 1907 and did not allow the state to obtain a conviction upon less proof. State v. Rogers, 992 S.W.2d 393, 1999 Tenn. LEXIS 276 (Tenn. 1999), rehearing denied, — S.W.2d —, 1999 Tenn. LEXIS 314 (Tenn. June 21, 1999), aff'd, Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697, 2001 U.S. LEXIS 3519 (2001).

74. —Police Power Exception.

The inhibition, as to impairing contracts, does not extend to subjects affecting public safety, health, or morals. Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079, 1879 U.S. LEXIS 1990 (Tenn. 1879); Butchers' Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U.S. 746, 4 S. Ct. 652, 28 L. Ed. 585, 1884 U.S. LEXIS 1831 (1884); Chicago, B. & Q.R.R. v. Nebraska ex rel. Omaha, 170 U.S. 57, 18 S. Ct. 513, 42 L. Ed. 948, 1898 U.S. LEXIS 1529 (1898), criticized, 28 S. Ct. 341, 208 U.S. 583, 52 L. Ed. 630, 1908 U.S. LEXIS 1470 (1908).

75. — —Common Carriers.

If a railroad is constructed upon the terms and conditions prescribed by a state, such state cannot impose afterwards upon the owners of the road new and more onerous terms, except such as fall within the exercise of police powers, for the purposes of taxation and for other public objects. New York, L.E. & W.R.R. v. Pennsylvania, 153 U.S. 628, 14 S. Ct. 952, 38 L. Ed. 846, 1894 U.S. LEXIS 2210 (1894).

Contracts between railroad companies as to the maintenance of crossings, power of a legislature to make subsequent regulations as to the division of expense of constructing and maintenance of crossings. Grand Trunk W. Ry. v. Railroad Comm'n, 221 U.S. 400, 31 S. Ct. 537, 55 L. Ed. 786, 1911 U.S. LEXIS 1742 (1911).

Prohibiting a transportation company from displaying advertisements on the exterior of vehicles does not impair the contract created by the charter of the company for the carriage of passengers. Fifth Ave. Coach Co. v. City of N.Y., 221 U.S. 467, 31 S. Ct. 709, 55 L. Ed. 815, 1911 U.S. LEXIS 1748 (1911).

A common carrier cannot prevent or postpone the exercise by a state of the power to regulate the carrier's rates and charges by making contracts for future transportation or business, mortgaging its property, or pledging its income, nor does the contract clause of the federal constitution interpose any obstacle to the exercise of such power. Producers Transp. Co. v. Railroad Comm'n, 251 U.S. 228, 40 S. Ct. 131, 64 L. Ed. 239, 1920 U.S. LEXIS 1730 (1920).

Statute authorizing elimination of grade crossings was held not to impair contract rights of railroad company. Birmingham v. Louisville & N.R.R., 216 Ala. 178, 112 So. 742, 1926 Ala. LEXIS 259 (1926).

Consent to use of state highways by trucks carrying a specified load, which was given by the state highway commission is not a contract within the meaning of the federal constitution prohibiting the impairment of contracts. Morris v. Duby, 274 U.S. 135, 47 S. Ct. 548, 71 L. Ed. 966, 1927 U.S. LEXIS 14 (1927).

76. — —Lotteries.

The grant of a privilege by statute to maintain a lottery may be repealed. Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079, 1879 U.S. LEXIS 1990 (Tenn. 1879); Douglas v. Kentucky, 168 U.S. 488, 18 S. Ct. 199, 42 L. Ed. 553, 1897 U.S. LEXIS 1742 (1897).

The grant in a state constitution to operate a lottery cannot be repealed by the legislature. New Orleans v. Houston, 119 U.S. 265, 7 S. Ct. 198, 30 L. Ed. 411, 1886 U.S. LEXIS 1986 (1886).

77. — —Municipal Action.

Obligation of contract is not impaired by ordinance forbidding erection of wooden buildings within fire district, although the contract to do so was made before passage of such ordinance. Corporation of Knoxville v. Bird, 80 Tenn. 121, 1883 Tenn. LEXIS 147, 47 Am. Rep. 326 (1883).

An agreement between a city and a water company, whereby the latter agreed to furnish water to citizens at certain rates, does not contain an implied provision that the city will not regulate the rates under its charter, especially where the charter of the water company recognized expressly the power of the city to regulate the rates. Knoxville Water Co. v. Knoxville, 189 U.S. 434, 23 S. Ct. 531, 47 L. Ed. 887, 1903 U.S. LEXIS 1371 (1903).

Although under court decisions, the owners of lands abutting on streets may have rights in the streets which cannot be taken away for the use of private persons, yet, the grade of the streets may be changed, or other improvements made which will render the same more available for public use. Sauer v. City of New York, 206 U.S. 536, 27 S. Ct. 686, 51 L. Ed. 1176, 1907 U.S. LEXIS 1180 (1907).

Act empowering city by ordinance to require a railroad to build or replace bridges over its tracks at street crossings and ordinance requiring building of a new bridge at such a crossing do not impair obligation of contracts, though city had previously contracted with railroad to maintain forever after suitable bridge there in return for contribution by company to a bridge there built, the matter involved being one within the police power, future exercise of which the city could not bargain away. City of Chattanooga v. Southern Ry., 128 Tenn. 399, 161 S.W. 1000, 1913 Tenn. LEXIS 57 (1913).

The obligation of the contract right which a street railway company has under its franchise to operate its railway in the streets of a municipality is not impaired by an ordinance enacted in the exercise of the police power, requiring the street railway company to sprinkle the surface of the streets occupied by its railway between the rails and tracks, and for a sufficient distance beyond the outer rails, so as effectually to lay the dust and prevent the same from arising when the cars are in operation. Pacific Gas & Elec. Co. v. Police Court, 251 U.S. 22, 40 S. Ct. 79, 64 L. Ed. 112, 1919 U.S. LEXIS 1845 (1919).

Act of city compelling street railroad company to improve its tracks for the public's safety and welfare was held not an impairment of the franchise contract. People ex rel. Chicago v. Chicago C. Ry., 324 Ill. 618, 155 N.E. 781, 1926 Ill. LEXIS 1081 (1926).

78. — —Turnpikes.

Statutory undertaking, “by virtue of the police power of the state,” to require a turnpike company, gates of which have been located in accordance with its charter, to set back its first gate at least two miles from limits of town which has grown up at one of the termini of the road and the second gate at least five miles from the first, on penalty of forfeiture of right to receive tolls, is unconstitutional. Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 396 (1877).

79. —Change of Remedies.

Though the legislature may alter remedies, the remedies must not, so far as regards antecedent contracts, be rendered less efficacious or more dilatory than those ordained by the law in force when the contract was made, if such alteration be the direct and special object of the legislature, apparent in an act made for the purpose. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

It is not unconstitutional to provide a new or additional remedy for a just right already in being, and which would be lost and destroyed if no remedy were provided. Statute authorizing any circuit court to which application might be made to receive and consider petition for emancipation of certain slaves and grant it or not as might be deemed proper was valid, the slaves being capable of being made free under existing laws. Hope v. Johnson, 10 Tenn. 123, 1826 Tenn. LEXIS 2 (1826).

The legal rather than the moral obligation of contract is what is protected by the constitution; and, as essential to this protection, the constitution intends that the legal means of enforcing contracts shall not be impaired. Webster & Mann v. Rose, 53 Tenn. 93, 1871 Tenn. LEXIS 324, 19 Am. Rep. 583 (1871).

Though the legislature has complete control over the form of remedy for enforcing obligation of contract and the mode of proceeding, it cannot directly or indirectly, if such be the purpose of the enactment, render the remedy essentially less effective for the enforcement of the obligation than when the contract was made. Webster & Mann v. Rose, 53 Tenn. 93, 1871 Tenn. LEXIS 324, 19 Am. Rep. 583 (1871).

Remedies for the enforcement of contracts may be changed if a complete remedy is left. Curtis v. Whitney, 80 U.S. 68, 20 L. Ed. 513, 1871 U.S. LEXIS 1314 (1871); Terry v. Anderson, 95 U.S. 628, 24 L. Ed. 365, 1877 U.S. LEXIS 2213 (1877); Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878); Connecticut Mut. Life Ins. Co. v. Cushman, 108 U.S. 51, 2 S. Ct. 236, 27 L. Ed. 648, 1882 U.S. LEXIS 1280 (1883); Denny v. Bennett, 128 U.S. 489, 9 S. Ct. 134, 32 L. Ed. 491, 1888 U.S. LEXIS 2242 (1888); Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 23 S. Ct. 234, 47 L. Ed. 249, 1903 U.S. LEXIS 1663 (1903).

Contracts cannot be impaired by the repeal of laws affecting remedies so as to impair substantially and lessen the value of the contract. Edwards v. Kearzey, 96 U.S. 595, 24 L. Ed. 793, 1877 U.S. LEXIS 1704 (1877); Antoni v. Greenhow, 107 U.S. 769, 2 S. Ct. 91, 27 L. Ed. 468, 1882 U.S. LEXIS 1269 (1882).

State's impairment of the obligation of a contract, forbidden by U.S. Const. art. 1, § 10, covers both cases where the statute destroys the remedy for enforcement of the contract and provides no other and cases where the substitution of a different remedy is of one in substance more difficult, more burdensome and uncertain than the one repealed, and which appreciably lessens the value of the contract. City of Cleveland v. United States, 166 F. 677, 1909 U.S. App. LEXIS 4292 (6th Cir. 1909).

The retrospective application of the 1985 amendment to § 28-1-105 is remedial, does not impair a vested right of the defendant in the statute of limitations and is constitutional. Morford v. Yong Kyun Cho, 732 S.W.2d 617, 1987 Tenn. App. LEXIS 2605 (Tenn. Ct. App. 1987).

80. — —Bonds.

The Tennessee Act of 1883 authorizing the refunding of debts of the former city of Memphis by bonds of the taxing district of Shelby County which superseded it, and providing for the collection of back taxes and their application to the payment of such bonds, did not impair the contracts of creditors of the city of Memphis, who could apply the new bonds to back taxes at the same rate as they otherwise could have done. Amy v. Shelby County Taxing Dist., 114 U.S. 387, 5 S. Ct. 895, 29 L. Ed. 172, 1885 U.S. LEXIS 1772 (1885).

If at the time of issuing bonds by a state, there exists a right by virtue of a constitutional provision to have the validity of claims against the state passed on by the courts of the state, but no provision exists for the enforcement of the judgment, a repeal or abrogation of such provision will not be an impairment of the contract made by the issuing of such bonds. Baltzer v. North Carolina, 161 U.S. 240, 16 S. Ct. 500, 40 L. Ed. 684, 1896 U.S. LEXIS 2158 (1896).

81. — —Debt.

An act abolishing the use of the writ of capias ad satisfaciendum does not impair the obligation of contract, the right to imprison a debtor being no part of the contract. Woodfin v. Hooper, 23 Tenn. 13, 1843 Tenn. LEXIS 3 (1843).

Imprisonment for debt may be abolished. Penniman's Case, 103 U.S. 714, 26 L. Ed. 602, 1880 U.S. LEXIS 2184 (1881).

82. — —Evidence.

Statute declaring a rule of evidence, applicable to actions thereafter brought, was held not to impair existing contracts. George I. Cramer, Inc. v. Patterson, 25 Ohio App. 130, 157 N.E. 398, 1926 Ohio App. LEXIS 413 (1926).

83. — —Executions.

Act directing that no execution shall issue upon a judgment until two years after its rendition unless the plaintiff shall indorse upon the execution that the sheriff may receive in satisfaction the notes of certain banks is invalid as impairing the obligation of contracts. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

Act providing for a stay of execution on all judgments and decrees in courts of record and before justices of the peace is unconstitutional as impairing obligation of contracts entered into before its enactment. Webster & Mann v. Rose, 53 Tenn. 93, 1871 Tenn. LEXIS 324, 19 Am. Rep. 583 (1871).

84. — —Exemptions.

Exemption laws that deprive persons of liens on property impair the obligation of contracts. Gunn v. Barry, 82 U.S. 610, 21 L. Ed. 212, 1872 U.S. LEXIS 1292 (1872).

The legislature, under the idea of affecting the remedy and not the right, cannot pass any law that impairs in any way the right in full force existing when the contract was executed. Such property as was subject to execution at the time the contract was made must remain so until the debt is paid. Hannum v. McInturf, 65 Tenn. 225, 1873 Tenn. LEXIS 338 (1873).

85. — —Insurance.

A law which would affect substantial contractual rights of insurer by abolishing conditions precedent to recovery under policy would be invalid. Wasser v. Congregation Agudath Sholem, 262 Mass. 235, 159 N.E. 603, 1928 Mass. LEXIS 992 (1928).

86. — —Judicial Sales.

Laws providing that property sold on judgments founded on contracts shall sell for a certain amount of the appraised value impair the obligation of contracts. Bronson v. Kinzie, 42 U.S. 311, 11 L. Ed. 143, 1843 U.S. LEXIS 314 (1843); McCracken v. Hayward, 43 U.S. 608, 11 L. Ed. 397, 1844 U.S. LEXIS 348 (1844), limited, Gelfert v. National City Bank, 313 U.S. 221, 61 S. Ct. 898, 85 L. Ed. 1299, 1941 U.S. LEXIS 1201, 133 A.L.R. 1467 (1941).

Act providing that in all sales of real estate hereafter to be made under execution or deed of trust, which by existing laws is subject to redemption, if the debtor is permitted by the purchaser or his assignee to remain in possession, he shall not be liable for rent from the date of the sale to the time of redemption, and if the purchaser or assignee shall take possession under his purchase, upon the redemption by the debtor, he shall be entitled to a credit for the fair rent of the premises during the time they were in the possession of the purchaser, is unconstitutional in its relation to sales under deeds of trust executed anterior to its passage. Greenfield v. Dorris, 33 Tenn. 548, 1853 Tenn. LEXIS 84 (1853).

87. — —Limitations.

States may enact limitation laws, and may shorten the time for bringing suits. Terry v. Anderson, 95 U.S. 628, 24 L. Ed. 365, 1877 U.S. LEXIS 2213 (1877); Wheeler v. Jackson, 137 U.S. 245, 11 S. Ct. 76, 34 L. Ed. 659, 1890 U.S. LEXIS 2083 (1890).

The statute of Pennsylvania declaring that after a lapse of twenty-one years ground rents for lands should be presumed to have been paid unless some act should be done within such time, as specified by the statute, which would rebut such presumption, does not impair the obligation of contracts. Wilson v. Iseminger, 185 U.S. 55, 22 S. Ct. 573, 46 L. Ed. 804, 1902 U.S. LEXIS 2240 (1902).

A state cannot prohibit defense of suit not brought within time limit in contract, made in, nor to be performed in the state, as it would be impairing the contractual rights of the parties. Home Ins. Co. v. Dick, 281 U.S. 397, 50 S. Ct. 338, 74 L. Ed. 926, 1930 U.S. LEXIS 396, 74 A.L.R. 701 (1930).

88. — —Taxes.

Where a bank charter required tax collectors to accept for taxes bank notes of the Bank of Tennessee, it was not an impairment of contract for the legislature to abolish the remedy of mandamus in case of refusal of collector to accept such notes, and to require the citizen to pay his tax and sue to recover it under provisions for prompt payment of any judgment rendered. An effectual remedy is still provided. Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878).

When judgment was taken against a city, payable under the law out of current taxes collected on assessments by its recorder at full value of property, it is an impairment of contracts for the legislature to require assessments to be made by county assessor with power of review, as a more difficult remedy has been imposed on the creditor to collect his judgment. City of Cleveland v. United States, 166 F. 677, 1909 U.S. App. LEXIS 4292 (6th Cir. 1909).

89. —Validation of Contracts.

Laws may be passed validating invalid deeds or contracts. Satterlee v. Matthewson, 27 U.S. 380, 7 L. Ed. 458, 1829 U.S. LEXIS 433 (1829); Watson v. Mercer, 33 U.S. 88, 8 L. Ed. 876, 1834 U.S. LEXIS 568 (1834).

Act, passed in 1890, validating charters previously acknowledged before notaries and giving them force as if acknowledged by a clerk of the county court, as was required by Act of 1875, was held not to impair obligation of contract made with corporation itself when its charter was invalid, by relieving incorporators from individual liability for corporate debts, though the incorporators were individually liable thereon up to passage of the act because of such invalidity. Shields v. Clifton Hill Land Co., 94 Tenn. 123, 28 S.W. 668, 1894 Tenn. LEXIS 31, 45 Am. St. Rep. 700, 26 L.R.A. 509 (1894).

A legislative act purporting to validate a statute relating to workmen's compensation, which was rendered inoperative by failure of the governor to approve the same within the time fixed by the constitution, was held invalid as impairing the obligation of a contract between the employer and the employee, as fixed by a statute in effect at the time of the injury. Preveslin v. Derby & Ansonia Dev. Co., 112 Conn. 129, 151 A. 518, 1930 Conn. LEXIS 17, 70 A.L.R. 1426 (1930).

90. Clause 2.

91. —Construction.

The word “imports” means articles imported from foreign countries, and not articles imported from one state into another. Woodruff v. Parham, 75 U.S. 123, 19 L. Ed. 382, 1868 U.S. LEXIS 1088 (1868); Brown v. Houston, 114 U.S. 622, 5 S. Ct. 1091, 29 L. Ed. 257, 1885 U.S. LEXIS 1803 (1885).

An excise laid upon tobacco before removal from the factory, is not a duty on “exports” though tobacco was intended for exportation. Turpin v. Burgess, 117 U.S. 504, 6 S. Ct. 835, 29 L. Ed. 988, 1886 U.S. LEXIS 1866 (1886).

The words “imports” and “exports,” as used in U.S. Const. art. 1, § 10 apply only to articles imported from, or exported to foreign countries. Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U.S. 345, 18 S. Ct. 862, 43 L. Ed. 191, 1898 U.S. LEXIS 1607 (1898).

Goods brought into the state from another state are not imports within the meaning of U.S. Const. art. 1, § 10, cl. 2, and after reaching their destination and being held for sale are subject to state taxation, although still in the original packages. American Steel & Wire Co. v. Speed, 192 U.S. 500, 24 S. Ct. 365, 48 L. Ed. 538, 1904 U.S. LEXIS 968 (1904).

A state tax imposed on the business of selling goods in foreign commerce, insofar as it is measured by the gross receipts resulting therefrom, is in effect a regulation of foreign commerce or an impost upon exports. Crew Levick Co. v. Pennsylvania, 245 U.S. 292, 38 S. Ct. 126, 62 L. Ed. 295, 1917 U.S. LEXIS 1737 (1917).

A tax on the income of domestic company derived from foreign business is not prohibited. William E. Peck & Co. v. Lowe, 247 U.S. 165, 38 S. Ct. 432, 62 L. Ed. 1049, 1918 U.S. LEXIS 1966 (1918).

92. —Original Package Doctrine.

A state cannot tax imported articles before sale, in original packages, even though the tax is a franchise tax measured by the capital employed in the state, by a foreign corporation which had qualified in the state. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 53 S. Ct. 373, 77 L. Ed. 710, 1933 U.S. LEXIS 36 (1933).

93. —Inspection Fees.

Proper inspection fees, required to be paid for the inspection of articles intended for export, is not a duty upon exports. Turner v. Maryland, 107 U.S. 38, 2 S. Ct. 44, 27 L. Ed. 370, 1882 U.S. LEXIS 1199 (1883).

Laws may be enacted requiring goods to be shipped from one state into another to be inspected before shipment, and a fee to be paid for inspection. New Mexico ex rel. E.J. McLean & Co. v. Denver & R.G.R.R., 203 U.S. 38, 27 S. Ct. 1, 51 L. Ed. 78, 1906 U.S. LEXIS 1564 (1906).

Although fish caught in ocean in ships and brought to port are “imports” under U.S. Const. art. 1, § 10, yet a statute requiring all wholesale dealers in fish to secure a license and pay one dollar for each one thousand pounds of fish handled, and providing for inspection of fish and premises, is valid as an inspection fee, and only indirectly affects imports. Gulf Fisheries Co. v. Darrouzet, 17 F.2d 374, 1926 U.S. Dist. LEXIS 1667 (S.D. Tex. 1926), aff'd, Gulf Fisheries Co. v. MacInerney, 276 U.S. 124, 48 S. Ct. 227, 72 L. Ed. 495, 1928 U.S. LEXIS 64 (1928).

Since the municipal inspection fee authorized by § 57-165 (now § 57-3-501) is collected by the wholesaler only after the retailer has purchased and paid for the alcoholic beverages (pursuant to § 57-166 (now § 57-3-502)), the fee is not a prohibited duty on imported goods. Memphis Retail Liquor Dealers' Asso. v. Memphis, 547 S.W.2d 244, 1977 Tenn. LEXIS 555 (Tenn. 1977).

94. —Sales Tax.

Imposition of sales tax on the lease in Tennessee to a Tennessee corporation of equipment delivered in Tennessee but earmarked for immediate use outside the state did not fall within the exemption granted by § 67-3007 (now § 67-6-211, 67-6-313) and did not impose a burden on interstate commerce in violation of U.S. Const. art. 1, § 10 or of U.S. Const. art. 1, § 8. Williams Rentals, Inc. v. Tidwell, 516 S.W.2d 614, 1974 Tenn. LEXIS 449 (Tenn. 1974).

Tennessee's sales tax, as applied to the transfer of possession of cargo containers in Tennessee, did not violate the import/export clause. Itel Containers Int'l Corp. v. Cardwell, 814 S.W.2d 29, 1991 Tenn. LEXIS 169 (Tenn. 1991), aff'd, Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 113 S. Ct. 1095, 122 L. Ed. 2d 421, 1993 U.S. LEXIS 1778 (1993).

Tennessee's sales tax, as applied to proceeds earned from leasing cargo containers used in international trade, did not violate the commerce, import-export or supremacy clauses of the federal constitution. Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 113 S. Ct. 1095, 122 L. Ed. 2d 421, 1993 U.S. LEXIS 1778 (1993).

95. Clause 3.

96. —Tonnage Duties.

Vessels entering a port of a state cannot be required to pay to the state a percentage on their tonnage. State Tonnage Tax Cases, 79 U.S. 204, 20 L. Ed. 370, 1870 U.S. LEXIS 1183 (1870); Peete v. Morgan, 86 U.S. 581, 22 L. Ed. 201, 1873 U.S. LEXIS 1467 (1874); Inman S.S. Co. v. Tinker, 94 U.S. 238, 24 L. Ed. 118, 1876 U.S. LEXIS 1854 (1876).

A city owning wharves or piers may make reasonable charges for the use of such facilities and such charges will not constitute a duty of tonnage prohibited by U.S. Const. art. 1, § 10. Oakland v. E.K. Wood Lumber Co., 211 Cal. 16, 292 P. 1076, 1930 Cal. LEXIS 297, 80 A.L.R. 379 (1930).

97. —Compacts.

A compact or agreement between states as to the boundary between them is consented to by congress by confirmation of the agreement. Poole v. Lessee of Fleeger, 36 U.S. 185, 9 L. Ed. 680, 1837 U.S. LEXIS 174 (1837).

This clause is directed against any compact tending to increase state powers encroaching on the power of the national government; the consent of congress may be implied by long acquiescence. Virginia v. Tennessee, 148 U.S. 503, 13 S. Ct. 728, 37 L. Ed. 537, 1893 U.S. LEXIS 2248 (1893); North Carolina v. Tennessee, 235 U.S. 1, 35 S. Ct. 8, 59 L. Ed. 97, 1914 U.S. LEXIS 1042 (1914).

A legislative declaration following a line run and designated as a boundary line between two states that it is correct and shall thereafter be deemed the true and established line does not import by itself a contract or agreement with the adjoining state. Virginia v. Tennessee, 148 U.S. 503, 13 S. Ct. 728, 37 L. Ed. 537, 1893 U.S. LEXIS 2248 (1893).

The compact of March 28, 1785, between the states of Virginia and Maryland is binding upon both as to the subjects embraced within it, so far as not inconsistent with the constitution of the United States, and such compact was not prohibited by the articles of confederation, and was continued in force after the adoption of the constitution. Wharton v. Wise, 153 U.S. 155, 14 S. Ct. 783, 38 L. Ed. 669, 1894 U.S. LEXIS 2172 (1894).

Consent may be expressly given after the agreement between the states has been made. Couch v. State, 140 Tenn. 156, 203 S.W. 831, 1918 Tenn. LEXIS 31 (1918).

NOTES TO DECISIONS

1. Clause 1.

2. —Executive Powers.

Political powers of the executive are discretionary and cannot be controlled by the judiciary.

Nominating and appointing officers. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803).

Recognition of foreign power. United States v. Palmer, 16 U.S. 610, 4 L. Ed. 471, 1818 U.S. LEXIS 380 (1818).

Decision that state constitution had been duly ratified. Luther v. Borden, 48 U.S. 1, 12 L. Ed. 581, 1849 U.S. LEXIS 337 (1849).

Determination of status of Indian tribe. United States v. Holliday, 70 U.S. 407, 18 L. Ed. 182, 1865 U.S. LEXIS 724 (1865).

Enforcement of alleged unconstitutional law. Mississippi v. Johnson, 71 U.S. 475, 18 L. Ed. 437, 1866 U.S. LEXIS 897 (1867).

Determining establishment of military authority in specified territory. Keely v. Sanders, 99 U.S. 441, 25 L. Ed. 327, 1878 U.S. LEXIS 1558 (1878).

Fixing date when foreign jurisdiction over conquered territory ceased. More v. Steinbach, 127 U.S. 70, 8 S. Ct. 1067, 32 L. Ed. 51, 1888 U.S. LEXIS 1966 (1888).

Determination of diplomatic status of person claiming to be a foreign minister. In re Baiz, 135 U.S. 403, 10 S. Ct. 854, 34 L. Ed. 222, 1890 U.S. LEXIS 2028 (1890).

Payment of Mexican claims. United States ex rel. Boynton v. Blaine, 139 U.S. 306, 11 S. Ct. 607, 35 L. Ed. 183, 1891 U.S. LEXIS 2384 (U.S. Mar. 23, 1891).

Determining status of alien under immigration laws. Nishimura Ekiu v. United States, 142 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146, 1892 U.S. LEXIS 1999 (U.S. Jan. 18, 1892).

Determining necessity of occupying foreign territory. Neely v. Henkel, 180 U.S. 109, 21 S. Ct. 302, 45 L. Ed. 448, 1901 U.S. LEXIS 1288 (1901).

Recognition of power of foreign state to fulfill treaty obligations. Terlinden v. Ames, 184 U.S. 270, 22 S. Ct. 484, 46 L. Ed. 534, 1902 U.S. LEXIS 2303 (1902).

In exercising his executive powers, the president may act through the heads of the various executive departments, and the official acts of such department heads are considered to be the acts of the president himself. Wilcox v. Jackson, 38 U.S. 498, 10 L. Ed. 264, 1839 U.S. LEXIS 457 (1839); Williams v. United States, 42 U.S. 290, 11 L. Ed. 135, 1843 U.S. LEXIS 312 (1843); Bartlett v. Kane, 57 U.S. 263, 14 L. Ed. 931, 1850 U.S. LEXIS 1553 (1853); Runkle v. United States, 122 U.S. 543, 7 S. Ct. 1141, 30 L. Ed. 1167, 1887 U.S. LEXIS 2136 (1887), limited, 13 S. Ct. 552, 148 U.S. 84, 37 L. Ed. 378, 1893 U.S. LEXIS 2209 (1893), questioned, In re Chapman, 17 S. Ct. 677, 166 U.S. 661, 41 L. Ed. 1154, 1897 U.S. LEXIS 2058 (1897).

Determination by the executive department of questions of fact is conclusive on the courts, but it is otherwise as to questions of law. American Live Stock Comm'n Co. v. United States, 28 F.2d 63, 1928 U.S. Dist. LEXIS 1438 (W.D. Okla. 1928), rev'd, United States v. American Livestock Com. Co., 279 U.S. 435, 49 S. Ct. 425, 73 L. Ed. 787, 1929 U.S. LEXIS 58 (1929).

In order for actions taken by a foreign government to fall within the act of state doctrine which is the province of the executive branch, the action must be taken by the sovereign state rather than a subdivision of that government. In re Adoption by McElroy, 522 S.W.2d 345, 1975 Tenn. App. LEXIS 206 (Tenn. App. 1975), cert. denied, McElroy v. Taylor, 423 U.S. 1024, 96 S. Ct. 469, 46 L. Ed. 2d 399, 1975 U.S. LEXIS 3700 (1975).

3. —Qualifications.

The constitution of the United States prescribes no qualifications for any state or municipal officers, but only for representatives in congress, for senators and for the president. Connell v. State, 144 N.E. 882, 196 Ind. 421, 1924 Ind. LEXIS 10 (Ind. 1925).

4. Clause 2.

5. —Electors.

Electors are not officers or agents of the United States. Their sole function is to cast, certify, and transmit the vote of the state for president and vice-president. In re Green, 134 U.S. 377, 10 S. Ct. 586, 33 L. Ed. 951, 1890 U.S. LEXIS 1978 (1890).

Under the second paragraph, the states have exclusive power to determine the manner of appointing electors of president and vice-president, and a state may be divided into districts, and electors appointed from each district by the voters thereof; but, under the fourth paragraph, congress has the power to determine the time of the appointment of electors, and when they shall meet. McPherson v. Blacker, 146 U.S. 1, 13 S. Ct. 3, 36 L. Ed. 869, 1892 U.S. LEXIS 2171 (1892).

Presidential electors are officers of the state and not federal officers. Walker v. United States, 93 F.2d 383, 1937 U.S. App. LEXIS 2819 (8th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 642, 58 S. Ct. 643, 58 S. Ct. 644, 82 L. Ed. 1103, 82 L. Ed. 1104, 82 L. Ed. 1105, 1938 U.S. LEXIS 213.

With respect to selection of presidential electors the federal and state laws must be read together. Maddox v. Board of State Canvassers, 116 Mont. 217, 149 P.2d 112, 1944 Mont. LEXIS 24 (1944).

6. Clause 3.

Under U.S. Const. amend. 12, the state acts as a unit, and its vote is given as a unit, but that vote is arrived at through the votes of its representatives in congress elected by districts. McPherson v. Blacker, 146 U.S. 1, 13 S. Ct. 3, 36 L. Ed. 869, 1892 U.S. LEXIS 2171 (1892).

7. Clause 5.

8. —Construction.

The apparent purpose of U.S. Const. art. 2, § 1, cl. 5 was not to ensure against alien officeholding, but to require American birth. Husar v. United States, 26 F.2d 847, 1928 U.S. App. LEXIS 3788 (9th Cir. 1928), cert. denied, 278 U.S. 625, 49 S. Ct. 27, 73 L. Ed. 545, 1928 U.S. LEXIS 543 (1928).

9. Legislative Veto.

The real issue facing courts in cases involving statutes in which the legislative veto has not been exercised is whether the delegation of authority is accompanied by sufficient standards to permit the executive to constitutionally exercise the power given. Muller Optical Co. v. EEOC, 743 F.2d 380, 1984 U.S. App. LEXIS 17016 (6th Cir. 1984).

The existence of a one-house veto provision in a statute does not render the statute invalid but only renders the act of congress, if it attempts to exercise its one-house veto, invalid. Muller Optical Co. v. EEOC, 743 F.2d 380, 1984 U.S. App. LEXIS 17016 (6th Cir. 1984) (reorganization scheme containing one-house veto provision).

NOTES TO DECISIONS

1. Clause 1.

2. —Commander-in-Chief.

Order of president seizing steel mills could not be sustained by way of implication from exercise of military power as commander-in-chief, since power does not authorize taking of private property. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 1952 U.S. LEXIS 2625, 47 Ohio Op. 430, 26 A.L.R.2d 1378 (1952).

3. — —Control over Military Forces.

The president has the power to establish rules and regulations for the government of the army. The secretary of war is the regular constitutional organ of the president for military administration, and orders promulgated through him are binding as the acts of the president. United States v. Eliason, 41 U.S. 291, 10 L. Ed. 968, 1842 U.S. LEXIS 370 (1842); United States v. Freeman, 44 U.S. 556, 11 L. Ed. 724, 1845 U.S. LEXIS 445 (1845); Kurtz v. Moffitt, 115 U.S. 487, 6 S. Ct. 148, 29 L. Ed. 458, 1885 U.S. LEXIS 1861 (1885).

The president as commander-in-chief is authorized to direct the movements of the military and naval forces, to employ them as he may deem most effectual, to invade the hostile country and subject it to the authority of the United States; but his conquests do not enlarge the boundaries of the Union nor extend the operation of its institutions beyond the limits before assigned to them by the legislative power. Fleming v. Page, 50 U.S. 603, 13 L. Ed. 276, 1850 U.S. LEXIS 1447 (1850), superseded by statute as stated in, State of Netherlands v. Federal Reserve Bank, 201 F.2d 455, 1953 U.S. App. LEXIS 2311 (1953).

The president's authority over the militia of the states is confined to occasions when they are called into the actual service of the United States; but no such limitation exists as to his power over the army and navy. Johnson v. Sayre, 158 U.S. 109, 15 S. Ct. 773, 39 L. Ed. 914, 1895 U.S. LEXIS 2235 (1895).

4. — —War Power.

Congress alone has power to declare war, but in case of invasion by a foreign nation the president is not only authorized but bound to resist force by force; and this is true whether the hostile party be a foreign invader or states organized in rebellion. The Brig Amy Warwick, 67 U.S. 635, 17 L. Ed. 459, 1862 U.S. LEXIS 282 (1862).

The president may make the attorney-general his agent for the seizure and confiscation of enemy property. Confiscation Cases, 87 U.S. 92, 22 L. Ed. 320, 22 L. Ed. 327, 1873 U.S. LEXIS 1490 (1873), superseded by statute as stated in, United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1986 U.S. App. LEXIS 30789 (10th Cir. Colo. 1986).

The power to establish shortage rationing, and the power to fix prices upon the entire range of civilian goods is neither expressly nor impliedly included in any war power of the president but such drastic power necessarily falls within the legislative power with which congress is vested. O'Neal v. United States, 140 F.2d 908, 1944 U.S. App. LEXIS 4076, 151 A.L.R. 1474 (6th Cir. Feb. 11, 1944), cert. denied, 322 U.S. 729, 64 S. Ct. 945, 88 L. Ed. 1565, 1944 U.S. LEXIS 829 (1944).

5. — —Control of Enemy Territory.

Appointment by the president as commander-in-chief of the army and navy of the United States during the Civil War, of Andrew Johnson as military governor of the state was an exercise of constitutional power and clothed him with all powers and duties pertaining to the office, including power to establish offices and tribunals; and municipal officers elected under his orders could levy and collect taxes pending military occupation of a city. Rutledge v. Fogg, 43 Tenn. 554, 1866 Tenn. LEXIS 87 (1866).

Upon the military occupation by the United States of a conquered territory, such territory passes under the control of the United States, but it does not, ipso facto, become a part of it; and its inhabitants are subject to the government of occupation, under the direction of the president of the United States as commander-in-chief of the army. Rutledge v. Fogg, 43 Tenn. 554, 1866 Tenn. LEXIS 87 (1866).

The president has the power to set up a provisional military government over conquered territory. Texas v. White, 74 U.S. 700, 19 L. Ed. 227, 1868 U.S. LEXIS 1056 (1868), overruled, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885), overruled in part, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885).

6. —Pardon Power.

The president has unlimited power to grant pardons, except in cases of impeachment, and the power extends to every offense known to the law, may be exercised at any time after the commission of the offense, and is not subject to legislative control. Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366, 1866 U.S. LEXIS 886 (1866); United States v. Klein, 80 U.S. 128, 20 L. Ed. 519, 1871 U.S. LEXIS 1319 (1871).

A pardon is an act of grace by which an offender is released from the consequences of his offense so far as practicable; but it affords no relief or compensation for what has been suffered by the offender. Knote v. United States, 95 U.S. 149, 24 L. Ed. 442, 1877 U.S. LEXIS 2143 (1877).

The power to grant reprieves and pardons includes the power to remit fines, penalties, and forfeitures of every description. The Laura, 114 U.S. 411, 5 S. Ct. 881, 29 L. Ed. 147, 1885 U.S. LEXIS 1775 (1885).

The president may issue a general proclamation of amnesty in favor of a class of persons who are subject to trial but have not been convicted. Jenkins v. Collard, 145 U.S. 546, 12 S. Ct. 868, 36 L. Ed. 812, 1892 U.S. LEXIS 2165 (U.S. May 16, 1892).

A conditional pardon may be granted. Kavalin v. White, 44 F.2d 49, 1930 U.S. App. LEXIS 3305 (10th Cir. 1930).

7. — —Contempt.

The pardoning power extends to convictions for criminal contempt in violating an injunction. Ex parte Grossman, 267 U.S. 87, 45 S. Ct. 332, 69 L. Ed. 527, 1925 U.S. LEXIS 359, 38 A.L.R. 131 (1925); United States v. Goldman, 277 U.S. 229, 48 S. Ct. 486, 72 L. Ed. 862, 1928 U.S. LEXIS 685 (1928).

8. — —Death Sentence.

The president has the power to commute a death sentence for murder to life imprisonment without the consent of the convict. Biddle v. Perovich, 274 U.S. 480, 47 S. Ct. 664, 71 L. Ed. 1161, 1927 U.S. LEXIS 45, 52 A.L.R. 832 (1927).

9. — —Amnesty to Witnesses.

The grant of the pardoning power to the president does not prohibit congress from granting amnesty to witnesses who give testimony incriminating themselves. Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819, 1896 U.S. LEXIS 2190 (1896).

10. Clause 2.

11. —Power to Make Treaties.

A treaty with a sovereign inures to his successors in the government of the country. The Sapphire, 78 U.S. 164, 20 L. Ed. 127, 1870 U.S. LEXIS 1468 (1870).

The power to make treaties is delegated expressly to the president. Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641, 1920 U.S. LEXIS 1520, 11 A.L.R. 984 (1920).

12. — —Treaties with Indians.

Treaties may be made with Indian tribes. Holden v. Joy, 84 U.S. 211, 21 L. Ed. 523, 1872 U.S. LEXIS 1326 (1872).

13. — —Subjects of Treaty.

The extradition of fugitives from justice is a proper subject of treaty. Holmes v. Jennison, 39 U.S. 540, 10 L. Ed. 579, 1840 U.S. LEXIS 387 (1840).

The treaty power extends to all proper subjects of negotiation between this and other governments, including the protection of citizens of one country owning property in another, and is unlimited except by restraints found in the constitution and those arising from the nature of the government itself and of that of the states. Geofroy v. Riggs, 133 U.S. 258, 10 S. Ct. 295, 33 L. Ed. 642, 1890 U.S. LEXIS 1907 (1890).

Treaties may be made providing for the exercise of judicial authority in other countries by officers appointed to reside therein. In re Ross, 140 U.S. 453, 11 S. Ct. 897, 35 L. Ed. 581, 1891 U.S. LEXIS 2479 (U.S. May 11, 1891).

Territory may be acquired, and the status of its inhabitants prescribed, by treaty. Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088, 1901 U.S. LEXIS 286 (1901).

Treaties may be made for the protection of migratory birds. Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641, 1920 U.S. LEXIS 1520, 11 A.L.R. 984 (1920).

14. — —Effect of Treaty on Laws.

A treaty may supersede a prior act of congress, and an act of congress may supersede a prior treaty. Cherokee Tobacco, 78 U.S. 616, 20 L. Ed. 227, 1870 U.S. LEXIS 1507 (1870).

Treaties made under the authority of the federal constitution control inconsistent provisions of state constitutions or statutes. Hauenstein v. Lynham, 100 U.S. 483, 25 L. Ed. 628, 1879 U.S. LEXIS 1841 (Tenn. 1879).

Although an act of congress may abrogate a prior treaty, it should not be construed as doing so unless its words plainly point to such a construction. Lem Moon Sing v. United States, 158 U.S. 538, 15 S. Ct. 967, 39 L. Ed. 1082, 1895 U.S. LEXIS 2277 (1895).

15. —Appointment of Officers.

Congress is authorized to vest the appointment of inferior officers in the president alone, in the courts of law, or in the heads of departments. Burnap v. United States, 252 U.S. 512, 40 S. Ct. 374, 64 L. Ed. 692, 1920 U.S. LEXIS 1531 (1920).

The words, “officer of the United States,” as used in a search and seizure statute, do not necessarily mean an “officer” selected as prescribed in U.S. Const. art. 2, § 2. Steele v. United States, 267 U.S. 505, 45 S. Ct. 417, 69 L. Ed. 761, 1925 U.S. LEXIS 387 (1925).

16. —Removal of Officers.

The constitution grants to the president the power to remove executive officers appointed by him with the consent of the senate, and an act of congress attempting to make such power dependent upon the consent of the senate is unconstitutional. Myers v. United States, 47 S. Ct. 21, 272 U.S. 52, 71 L. Ed. 160, 1926 U.S. LEXIS 35 (1926).

Congress has no power to limit president in removing executive officers. Myers v. United States, 47 S. Ct. 21, 272 U.S. 52, 71 L. Ed. 160, 1926 U.S. LEXIS 35 (1926).

17. Clause 3.

18. —Appointment During Recess.

A vacancy created by the dismissal of an army officer from service by the president can only be filled by a new appointment, by and with the advice of the senate, unless it occurs during a recess of that body, in which event the president can grant a commission to expire at the end of its next succeeding session. United States v. Corson, 114 U.S. 619, 5 S. Ct. 1158, 29 L. Ed. 254, 1885 U.S. LEXIS 1802 (1885).

NOTES TO DECISIONS

1. Execution of Laws.

The obligation, imposed on the president to see that the laws are executed faithfully, does not imply a power to forbid their execution. Kendall v. United States, 37 U.S. 524, 9 L. Ed. 1181, 1838 U.S. LEXIS 370 (Mar. 12, 1838).

This duty includes the enforcement not only of acts of congress and treaties according to their express terms, but, also, the rights, duties, and obligations growing out of the constitution itself, on international relations, and all the protection implied by the nature of the government under the constitution. The president, therefore, has the power to take measures to protect a judge of a federal court from a threatened personal attack while discharging the duties of his office. In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55, 1890 U.S. LEXIS 2006 (1890).

2. Commissioning of Officers.

A commission is complete when signed by the president and the seal of the United States affixed by the secretary of state. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803).

NOTES TO DECISIONS

1. Judicial Power in General.

Congress has no power to assign to the judiciary any but judicial duties. Hayburn's Case, 2 U.S. 409, 1 L. Ed. 436, 1792 U.S. LEXIS 591 (1792).

U.S. Const. art. 3 is mandatory on congress, which is required to vest the entire judicial power of the United States in some court or courts. Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (U.S. Mar. 20, 1816).

Congress cannot assume judicial powers nor delegate such powers to an executive officer. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (Tenn. 1881).

Congress may provide for review of the actions of boards and commissions by transferring their proceedings to courts for determination de novo. Stephens v. Cherokee Nation, 174 U.S. 445, 19 S. Ct. 722, 43 L. Ed. 1041, 1899 U.S. LEXIS 1512 (1899).

Where construction of dam threatened extermination of rare fish species, and Tennessee valley authority argued that completion of the dam was not prohibited by the Endangered Species Act (16 U.S.C. § 1531 et seq.), continued congressional funding of the dam project could not be viewed as acquiescence in or ratification of the authority's interpretation of the act, since to do so would be tantamount to permitting congress to invade a province reserved to the courts by U.S. Const. art. 3. Hill v. Tennessee Valley Authority, 549 F.2d 1064, 1977 U.S. App. LEXIS 10268 (6th Cir. 1977), aff'd, Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117, 1978 U.S. LEXIS 33 (1978).

Only where a statute or executive order provides simple authorization of a project, leaving administrative details to an implementing authority, may courts properly interpret sustained congressional funding of the project as some evidence that the evolving form of the project fulfills the original legislative intent. Hill v. Tennessee Valley Authority, 549 F.2d 1064, 1977 U.S. App. LEXIS 10268 (6th Cir. 1977), aff'd, Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117, 1978 U.S. LEXIS 33 (1978).

The constitution and the statutes do not prohibit the parties from waiving de novo review by the district court even if the bankruptcy court's decision will not be reviewable on appeal or otherwise by the district court or another article 3 court. Exchange Mut. Ins. Co. v. Maness, 88 B.R. 177, 1988 Bankr. LEXIS 943 (Bankr. E.D. Tenn. 1988).

The Sentencing Reform Act of 1984, 28 U.S.C. § 991-98, is unconstitutional because it establishes a sentencing commission within the judicial branch but entrusts it with legislative powers. United States v. Thomas, 699 F. Supp. 147, 1988 U.S. Dist. LEXIS 11793 (W.D. Tenn. 1988), aff'd without opinion, United States v. Ray, 884 F.2d 1393, 1989 U.S. App. LEXIS 14259 (6th Cir. 1989).

Although it is well-settled that federal courts have the power under U.S. Const. art. 3, § 1 to exercise pendent jurisdiction over state law claims, because matters involving issues of state law are not cognizable in a habeas corpus proceeding and federal habeas corpus relief cannot be granted on state law grounds, the lower courts erred in concluding that the defendant's independent state constitutional question had been “previously determined” in federal court, because federal courts in habeas corpus lacked jurisdiction over state law claims. Carter v. State, 958 S.W.2d 620, 1997 Tenn. LEXIS 497 (Tenn. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. LEXIS 614 (Tenn. Dec. 15, 1997).

2. Creation of Jurisdiction.

The United States constitution confers the power to create jurisdiction exclusively upon congress. In re Conley, 26 B.R. 885, 1983 Bankr. LEXIS 6961 (Bankr. M.D. Tenn. 1983).

3. Determination of Validity of Acts.

United States courts have the power to declare acts of congress unconstitutional. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803).

The courts cannot inquire into the motives of the legislature, even where fraud and corruption are alleged. United States v. Des Moines Nav. & Ry., 142 U.S. 510, 12 S. Ct. 308, 35 L. Ed. 1099, 1892 U.S. LEXIS 1989 (U.S. Jan. 11, 1892).

4. Construction of Acts.

The duty of interpreting the laws is imposed on the judiciary. United States v. Dickson, 40 U.S. 141, 10 L. Ed. 689, 1841 U.S. LEXIS 260 (1841).

The power to construe a statute is incidental necessarily to the power to determine its constitutionality. Heald v. District of Columbia, 254 U.S. 20, 41 S. Ct. 42, 65 L. Ed. 106, 1920 U.S. LEXIS 1230 (1920).

5. United States Courts.

Except in the cases especially enumerated in the constitution, the distribution of the judicial power among the courts of the United States is entirely within the control of congress. Johnson Co. v. Wharton, 152 U.S. 252, 14 S. Ct. 608, 38 L. Ed. 429, 1894 U.S. LEXIS 2116 (1894).

A state cannot prescribe qualifications of suitors in the courts of the United States. Midland Linseed Products Co. v. Warren Bros. Co., 46 F.2d 870, 1925 U.S. App. LEXIS 2581 (6th Cir. Tenn. 1925).

No article 3 judges may be required by congress constitutionally to perform non-judicial functions. United States v. Landers, 690 F. Supp. 615, 1988 U.S. Dist. LEXIS 7727 (W.D. Tenn. 1988).

6. —Inferior Courts.

A federal court is of limited jurisdiction, and the fair presumption is that a cause is without its jurisdiction until the contrary appears. Turner v. President, Dirs. & Co. of Bank of North-America, 4 U.S. 8, 1 L. Ed. 718, 1799 U.S. LEXIS 246 (1799).

A federal district court is not a court of general jurisdiction but has only such jurisdiction as is prescribed by congress pursuant to U.S. Const. art. 3. Cline v. Richards, 455 F. Supp. 42, 1977 U.S. Dist. LEXIS 14404 (E.D. Tenn. 1977).

The United States district courts are not courts of general jurisdiction; rather, they have only such jurisdiction as has been prescribed by the congress pursuant to U.S. Const. art. 3. Printing Specialties & Paper Products Dist. Council No. 2 v. International Printing & Graphic Communications Union, 466 F. Supp. 13, 1978 U.S. Dist. LEXIS 18277 (E.D. Tenn. 1978).

The federal Magistrates Act is constitutional. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 1985 U.S. App. LEXIS 29638, 92 A.L.R. Fed. 661 (6th Cir. Tenn. 1985).

The 1984 Act which created a system of bankruptcy courts with two distinguishable bases of authority, where each court was a “legislative court” with the authority to make final judgments on matters that are at the core of the federal bankruptcy power, and where each court was also an adjunct to the district court in matters that were merely related to bankruptcy proceedings, was constitutional. In re Production Steel, Inc., 48 B.R. 841, 1985 U.S. Dist. LEXIS 20667 (M.D. Tenn. 1985).

Sections 104(a) and 121(e) of the Bankruptcy Amendments and Federal Judgeship Act of 1984, which permit the district court to refer any or all cases arising under Title 11 to the district's bankruptcy judges, and authorizes bankruptcy judges in core bankruptcy uses to enter orders and judgments subject to the review of the district courts, were constitutional. In re Production Steel, Inc., 48 B.R. 841, 1985 U.S. Dist. LEXIS 20667 (M.D. Tenn. 1985).

Bankruptcy party's constitutional right to an article 3 trial court is satisfied by the district court's power of de novo review; it makes the district court the ultimate decisionmaker at the trial level. Exchange Mut. Ins. Co. v. Maness, 88 B.R. 177, 1988 Bankr. LEXIS 943 (Bankr. E.D. Tenn. 1988).

7. —Territorial Courts.

Territorial courts are not inferior courts within the meaning of U.S. Const. art. 3, § 1, and do not exercise the “judicial power of the United States.” The “City of Panama”, 101 U.S. 453, 25 L. Ed. 1061, 1879 U.S. LEXIS 1940 (Tenn. 1879).

8. State Courts.

The state and federal courts being independent of each other, can neither impede nor arrest any action the other may take within the limits of its jurisdiction. Amy v. Supervisors, 78 U.S. 136, 20 L. Ed. 101, 1870 U.S. LEXIS 1465 (1870).

9. Tenure and Compensation.

Congress has no power over the tenure of office of federal judges. Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (U.S. Mar. 20, 1816).

The possibility that the executive could remove an article 3 judge from a position on sentencing commission or any other position jeopardizes the independence of the judiciary that the life tenure established by the constitution was intended to protect. United States v. Thomas, 699 F. Supp. 147, 1988 U.S. Dist. LEXIS 11793 (W.D. Tenn. 1988), aff'd without opinion, United States v. Ray, 884 F.2d 1393, 1989 U.S. App. LEXIS 14259 (6th Cir. 1989).

10. Right to Jury Trial.

Persons charged with petty offenses in violation of city ordinances are not, as a matter of right, entitled to a trial by jury under the provisions of either the state or the federal constitutions. Jackson v. Bledsoe, 830 S.W.2d 71, 1991 Tenn. App. LEXIS 936 (Tenn. Ct. App. 1991).

11. Good Faith Belief in Privilege.

Defendant's “good faith” belief regarding the validity of defendant's asserted constitutional privileges was no excuse for non-compliance; if a party can make themselves a judge of the validity of orders which have been issued, and by their own act of disobedience set them aside, then what the constitution now fittingly calls “the judicial power of the United States” would be a mere mockery. United States v. Bibbins, 113 F. Supp. 2d 1194, 2000 U.S. Dist. LEXIS 18848 (E.D. Tenn. 2000), rev'd, 248 F.3d 1152, 2001 U.S. App. LEXIS 12698 (6th Cir. Tenn. 2001), rev'd, — F.3d —, — FED App. (6th Cir.) —, 3 Fed. Appx. 251, 2001 U.S. App. LEXIS 1891 (6th Cir. Tenn. 2001).

Collateral References.

Civil jurisdiction of magistrates under Federal Magistrates Act of 1968 (28 U.S.C. § 631 et seq.). 128 A.L.R. Fed. 115, rates under Federal Magistrates Act of 1968 (28 U.S.C. § 631 et seq.).

NOTES TO DECISIONS

1. Clause 1.

2. —In General.

The United States courts are not courts of general jurisdiction but rather have only such jurisdiction as has been prescribed by congress pursuant to U.S. Const. art. 3. Good v. Krauss, 457 F. Supp. 50, 1978 U.S. Dist. LEXIS 17955 (E.D. Tenn. 1978).

The basis for federal jurisdiction of diversity or federal-question claims against a Tennessee city or county is a combination of U.S. Const. art. 3, § 2 and of the supremacy clause, U.S. Const. art. 6, cl. 2; when the basis for federal jurisdiction is a pendent state-law claim, however, federal power arises from the fact that, considered without regard for their federal or state character, plaintiff's separate claims arise from a common nucleus of operative fact and that ordinarily she would be expected to try them all in one judicial proceeding. Beddingfield v. Pulaski, 666 F. Supp. 1064, 1987 U.S. Dist. LEXIS 7844 (M.D. Tenn. 1987).

The judicial power of U.S. Const. art. 3 encompasses all suits in which federal law is an ingredient; however, U.S. Const. art. 3 is not self-executing and federal courts are courts of limited jurisdiction. Evans v. Evans, 668 F. Supp. 639, 1987 U.S. Dist. LEXIS 7860 (M.D. Tenn. 1987).

3. —Construction.

Congress cannot extend the jurisdiction of federal courts beyond the limits fixed in the constitution. Hodgson v. Bowerbank, 9 U.S. 303, 3 L. Ed. 108, 1809 U.S. LEXIS 437 (1809).

The supreme court alone possesses jurisdiction derived immediately from the constitution, and of which congress cannot deprive it. United States v. Hudson & Goodwin, 11 U.S. 32, 3 L. Ed. 259, 1812 U.S. LEXIS 365 (1812); Stevenson v. Fain, 195 U.S. 165, 25 S. Ct. 6, 49 L. Ed. 142, 1904 U.S. LEXIS 742 (1904).

U.S. Const. art. 3, § 2, cl. 1 embraces alike civil and criminal cases. Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648, 1879 U.S. LEXIS 1829 (1880).

The supreme court cannot increase or diminish by its rules the jurisdiction conferred on the inferior courts by congress. Venner v. Great N. Ry., 209 U.S. 24, 28 S. Ct. 328, 52 L. Ed. 666, 1908 U.S. LEXIS 1768 (1908).

Every lower court created by the general government derives its jurisdiction wholly from the authority of congress, which may give, withhold, or restrict such jurisdiction at its discretion, provided, that it be not extended beyond the boundaries fixed by the constitution. Kline v. Burke Constr. Co., 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 1922 U.S. LEXIS 2363, (1922).

4. —“Cases” or “Controversies.”

A proceeding is within the meaning of these words if it involves a right which in its nature is susceptible of judicial determination, and if the determination of it is not simply ancillary or advisory, but is the final and indisputable basis of action by the parties. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168, 44 L. Ed. 223, 1899 U.S. LEXIS 1576 (1899).

Proceedings under Tennessee declaratory judgment act to determine the validity of a taxing statute alleged to violate the commerce clause and U.S. Const. amend. 14 presented a case or controversy for suit reviewable in the supreme court of the United States. Nashville, C. & S. L. Ry. v. Wallace, 288 U.S. 249, 53 S. Ct. 345, 77 L. Ed. 730, 1933 U.S. LEXIS 37, 87 A.L.R. 1191 (1933).

The Declaratory Judgment Act of 1934 (F.C.A., title 28, §§ 2201, 2202) in its limitation to “cases of actual controversy” means that it operates only in respect to controversies in the constitutional sense, as the word “actual” is one of emphasis rather than definition. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617, 1937 U.S. LEXIS 1147, (1937, 108 A.L.R. 1000), rehearing denied, 300 U.S. 687, 57 S. Ct. 667, 81 L. Ed. 889 (1937).

Action by citizens and taxpayers of communities near Muscle Shoals for a declaratory judgment against Tennessee Valley Authority and its directors adjudging that they are not complying with statute requiring the corporation to maintain its principal office in the immediate vicinity of Muscle Shoals, did not present a justiciable controversy, where only interest of plaintiffs was the indirect benefit that would accrue to them as citizens and taxpayers of Muscle Shoals. Frahn v. Tennessee Valley Authority, 41 F. Supp. 83, 1941 U.S. Dist. LEXIS 2612 (1941).

Where cause is dismissed by federal court for lack of jurisdiction, the cause either does not arise under federal constitution, laws, or treaties or is not a case or controversy within the meaning of U.S. Const. art. 3, § 2, or the cause is not one described by a jurisdictional statute. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 1962 U.S. LEXIS 1567 (1962).

The courts must look behind the name that symbolizes the parties to determine whether a justiciable controversy is presented; under some circumstances, one agency of the executive branch may sue another and have a justiciable controversy. Dean v. Herrington, 668 F. Supp. 646, 1987 U.S. Dist. LEXIS 7925 (E.D. Tenn. 1987).

State employees' retirement rendered their claims for injunctive relief toward reinstatement moot, while fellow co-workers who did not retire still presented a live judicial concern, which satisfied the case or controversy requirement under U.S. Const. art. 3, § 2. Sutton v. Evans, 845 F. Supp. 1192, 1994 U.S. Dist. LEXIS 3230 (M.D. Tenn. 1994).

Requests for attorneys' fees per se are not sufficient to satisfy the case or controversy requirement under U.S. Const. art. 3, § 2. Sutton v. Evans, 845 F. Supp. 1192, 1994 U.S. Dist. LEXIS 3230 (M.D. Tenn. 1994).

To protect themselves from prosecution and criminal sanctions, plaintiffs sought a declaratory judgment that an adult, sexually explicit videotape was protected under U.S. Const. amend. 1 and was not legally obscene. The mere assertion of self-censorship resulting from a facially valid statute is not sufficient to bring the instant action within the case or controversy requirement of U.S. Const. art. 3. Therefore, plaintiffs have failed to allege a sufficient injury-in-fact to have standing in this action. Adult Video Ass'n v. United States Dep't of Justice, 853 F. Supp. 263, 1994 U.S. Dist. LEXIS 6509 (W.D. Tenn. 1994), aff'd, 71 F.3d 563, 1995 FED App. 350P, 1995 U.S. App. LEXIS 34331 (6th Cir. Tenn. 1995).

Successful candidate's action for declaratory and injunctive relief for alleged election irregularities which he claimed resulted in the disenfranchise of numerous voters of their right to vote for him failed to articulate an injury sufficient for standing in federal court. Looper v. Boman, 958 F. Supp. 341, 1997 U.S. Dist. LEXIS 4756 (M.D. Tenn. 1997).

Registered sex offender had standing to challenge act requiring his registration and allowing release of information since his status as a registered sex offender under the act resulted in an injury since he faced a specific threat of being subject to release of registry information every day. Cutshall v. Sundquist, 193 F.3d 466, 1999 FED App. 352P, 1999 U.S. App. LEXIS 24363 (6th Cir. Tenn. 1999), cert. denied, 529 U.S. 1053, 120 S. Ct. 1554, 146 L. Ed. 2d 460, 2000 U.S. LEXIS 2391 (2000).

Under the “case or controversy” requirement, the court has no authority to issue a decision which would not affect the rights of the litigants. The test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties. Southwest Williamson County Community Ass'n v. Slater, 243 F.3d 270, 2001 FED App. 70P, 2001 U.S. App. LEXIS 3846 (6th Cir. 2001).

Tennessee's courts do not have a constitutional limitation on their jurisdiction similar to the “case or controversy” requirement in U.S. Const. art. 3.. They have, however, recognized justiciability doctrines similar to those developed by the United States supreme court to determine when courts should hear a case. Rodgers v. Rodgers, — S.W.3d —, 2006 Tenn. App. LEXIS 328 (Tenn. Ct. App. May 17, 2006).

5. —Cases in “Law” and “Equity.”

The equity jurisdiction of the federal courts is the same in all states. United States v. Howland & Allen, 17 U.S. 108, 4 L. Ed. 526, 1819 U.S. LEXIS 309 (1819).

It is not subject to state regulation nor limited by the chancery system adopted in any state. Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 14 L. Ed. 249, 1851 U.S. LEXIS 876 (1851), superseded by statute as stated in, Denike v. Fauver, 3 F. Supp. 2d 540, 1998 U.S. Dist. LEXIS 6449 (D.N.J. 1998), superseded by statute as stated in, Berne Corp. v. Gov't of the V.I., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 70702 (2008), superseded by statute as stated in, Barbieri v. Redstone Am. Grill, Inc., — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 9309 (N.D. Ill. Feb. 6, 2009); Payne v. Hook, 74 U.S. 425, 19 L. Ed. 260, 1868 U.S. LEXIS 1018 (1868).

U.S. Const. art. 3, § 2, cl. 1 recognizes and establishes the distinction between law and equity. Fenn v. Holme, 62 U.S. 481, 16 L. Ed. 198, 1858 U.S. LEXIS 673 (1858); Thompson v. Railroad Cos., 73 U.S. 134, 18 L. Ed. 765, 1867 U.S. LEXIS 948, 4 Ohio F. Dec. 90 (1867).

The equity jurisdiction of the courts of the United States is the same as that possessed by the High Court of Chancery in England. Payne v. Hook, 74 U.S. 425, 19 L. Ed. 260, 1868 U.S. LEXIS 1018 (1868).

The adoption by federal courts of the forms of practice employed in state courts does not destroy the distinction between law and equity, nor permit the blending of legal and equitable claims in one suit. Lindsay v. First Nat'l Bank, 156 U.S. 485, 15 S. Ct. 472, 39 L. Ed. 505, 1895 U.S. LEXIS 2154 (1895).

6. —Cases Arising Under Constitution, Laws and Treaties.

A case may be said to arise under the constitution, law or a treaty of the United States whenever its correct decision depends upon the construction of either; and the case may be either civil or criminal. Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648, 1879 U.S. LEXIS 1829 (1880).

United States courts have jurisdiction of actions against election officers to recover damages for refusing to allow a legal voter to vote for a member of congress. Wiley v. Sinkler, 179 U.S. 58, 21 S. Ct. 17, 45 L. Ed. 84, 1900 U.S. LEXIS 1845 (1900); Swafford v. Templeton, 185 U.S. 487, 22 S. Ct. 783, 46 L. Ed. 1005, 1902 U.S. LEXIS 916 (1902).

Whenever the constitutionality of an act of congress is involved in an action, a federal question is involved, and jurisdiction is conferred upon the United States courts without regard to the residence of the parties. Patton v. Brady, 184 U.S. 608, 22 S. Ct. 493, 46 L. Ed. 713, 1902 U.S. LEXIS 2264 (1902).

A state will not be permitted to sue in the supreme court to restrain the enforcement of Revenue Act of Feb. 26, 1926, ch. 27, § 301(b) (Mason's U.S. Code, title 26, § 1093; U.S.C., title 26, § 1093; F.C.A., title 26, § 1093), providing for a deduction from the income tax of state inheritance taxes paid on the ground that the constitution of plaintiff's state prohibits the imposition of inheritance taxes and hence that the provision of the revenue act lacks uniformity and works to the prejudice of the citizens of plaintiff's state. Florida v. Mellon, 273 U.S. 12, 47 S. Ct. 265, 71 L. Ed. 511, 1927 U.S. LEXIS 677 (1927).

A complaint whereby petitioners: (1) Alleged that they were denied equal protection of the laws by Acts 1901, ch. 122, apportioning the members of General Assembly; and (2) Sought; (a) Declaration that the statute was unconstitutional; and (b) Injunction restraining appellees from acting to conduct further elections under it set forth a cause of action which arose under federal constitution; therefore, subject matter is within federal judicial power as defined in U. S. Const. art. 3, § 2 and thus within power of congress to assign to jurisdiction of United States district courts. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 1962 U.S. LEXIS 1567 (1962).

7. —Cases Affecting Ambassadors and Consuls.

Immunity from suit in a state court extends to members of an envoy's domestic suite. Immunity cannot be waived by the envoy for himself, but may be waived by the members of his domestic suite; and voluntary appearance of envoy's wife in a suit in rem held to amount to a waiver. Herman v. Apetz, 130 Misc. 618, 224 N.Y.S. 389 (1927), superseded by statute as stated in, Slater v. Biehl, 793 A.2d 1268, 2002 D.C. App. LEXIS 65 (D.C. 2002).

This provision does not deprive the state courts of jurisdiction over a suit against a consular representative for divorce and alimony. Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S. Ct. 154, 74 L. Ed. 489, 1930 U.S. LEXIS 755 (1930).

8. —Admiralty and Maritime Cases.

In determining the scope of admiralty jurisdiction, the commerce clause of the constitution must be considered in connection with U.S. Const. art. 3, § 2. New Jersey Steam Nav. Co. v. Merchants' Bank, 47 U.S. 344, 12 L. Ed. 465, 1848 U.S. LEXIS 319 (1848), superseded by statute as stated in, In re Scott, 21 F. Cas. 798, 1869 U.S. Dist. LEXIS 300 (1869).

The admiralty and maritime jurisdiction of the federal government is not limited to tidewaters, but extends to all public navigable lakes and rivers where commerce is carried on between the different states, or with a foreign nation. The Propeller Genesee Chief v. Fitzhugh, 53 U.S. 443, 13 L. Ed. 1058, 1851 U.S. LEXIS 674 (1851), superseded by statute as stated in, Executive Jet Aviation, Inc. v. Cleveland, 34 L. Ed. 2d 454, 93 S. Ct. 493, 409 U.S. 249, 1972 U.S. LEXIS 112 (1972); The Moses Taylor, 71 U.S. 411, 18 L. Ed. 397, 1866 U.S. LEXIS 891 (1866); The Hine v. Trevor, 71 U.S. 555, 18 L. Ed. 451, 1866 U.S. LEXIS 904 (1866); The Lottawanna, 88 U.S. 558, 22 L. Ed. 654, 1874 U.S. LEXIS 1394 (1874), criticized, Lake Carriers' Ass'n v. Kelley, 527 F. Supp. 1114, 1981 U.S. Dist. LEXIS 18105 (E.D. Mich. 1981).

To constitute a river a navigable water of the United States, it must, by itself, or by its connection with other waters, constitute a continuous highway over which commerce may be carried on with other states or foreign countries. The Montello, 78 U.S. 411, 20 L. Ed. 191, 1870 U.S. LEXIS 1490 (1870); Miller v. Mayor of New York, 109 U.S. 385, 3 S. Ct. 228, 27 L. Ed. 971, 1883 U.S. LEXIS 980 (1883).

The admiralty and maritime jurisdiction of the federal courts is exclusive. The Glide, 167 U.S. 606, 17 S. Ct. 930, 42 L. Ed. 296, 1897 U.S. LEXIS 2118 (1897).

This provision by implication gives congress power to legislate in respect to matters within admiralty and maritime jurisdiction, and takes from the states all power to contravene the essential purposes of characteristic features of that law. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 1920 U.S. LEXIS 1457, 11 A.L.R. 1145 (1920), superseded by statute as stated in, Garvin v. Alumax of South Carolina, Inc., 787 F.2d 910, 1986 U.S. App. LEXIS 29852, 1987 A.M.C. 402 (6th Cir. 1986), superseded by statute as stated in, Guilles v. Sea-Land Serv., 820 F. Supp. 744, 1993 U.S. Dist. LEXIS 4881, 1993 A.M.C. 2761 (6th Cir. 1993), superseded by statute as stated in, Guilles v. Sea-Land Serv., 12 F.3d 381, 1993 U.S. App. LEXIS 33646, 1995 A.M.C. 1223 (6th Cir. 1993) .

The United States supreme court has set forth a two part test for determining whether an action falls within the admiralty jurisdiction of the federal courts: (1) The incident at issue must have occurred on or over navigable waters; and (2) The activity giving rise to the incident must have had a substantial relationship to traditional maritime activity and had a potentially disruptive impact on maritime commerce. Casciani v. Pruett, 109 F. Supp. 2d 894, 2000 U.S. Dist. LEXIS 12574 (M.D. Tenn. 2000).

A lake which is located entirely within the state of Tennessee is not a navigable waterway because it cannot act as a continuous highway of commerce between two states or with a foreign country. Casciani v. Pruett, 109 F. Supp. 2d 894, 2000 U.S. Dist. LEXIS 12574 (M.D. Tenn. 2000).

9. — —Contracts.

Admiralty jurisdiction in cases of contract depends primarily upon the nature of the contract, and is limited to contracts, claims, and services, purely maritime, and touching rights and duties appertaining to commerce and navigation. People's Ferry Co. v. Beers, 61 U.S. 393, 15 L. Ed. 961, 1857 U.S. LEXIS 465 (1857).

A contract to build a ship is not within the admiralty and maritime jurisdiction of the federal courts. People's Ferry Co. v. Beers, 61 U.S. 393, 15 L. Ed. 961, 1857 U.S. LEXIS 465 (1857).

The exclusiveness of federal jurisdiction over a maritime contract cannot be defeated by a local statute of frauds. Union Fish Co. v. Erickson, 248 U.S. 308, 39 S. Ct. 112, 63 L. Ed. 261, 1919 U.S. LEXIS 2313 (1919).

A contract for the services of a master of a vessel, the duties to be performed mainly upon the sea, is controlled by the maritime law, though the engagement happened to be made within a state. Union Fish Co. v. Erickson, 248 U.S. 308, 39 S. Ct. 112, 63 L. Ed. 261, 1919 U.S. LEXIS 2313 (1919).

A contract for services and materials for the repair of a vessel already launched and devoted to maritime use is within maritime jurisdiction. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 39 S. Ct. 221, 63 L. Ed. 510, 1919 U.S. LEXIS 2234 (1919).

An act of congress providing for the making of an order, in admiralty cases, for the arbitration of issues when the contract between the parties so provides does not violate U.S. Const. art. 3, § 2, cl. 1. Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S. Ct. 166, 76 L. Ed. 282, 1932 U.S. LEXIS 975 (1932).

10. — —Torts and Crimes.

The United States courts may punish persons for the larceny of goods of a vessel wrecked upon the seas, although the goods, when taken, were upon land and above highwater mark. United States v. Coombs, 37 U.S. 72, 9 L. Ed. 1004, 1838 U.S. LEXIS 341 (Jan. 27, 1838).

In tort cases admiralty jurisdiction depends entirely on the place where the wrong is committed. Philadelphia, W., & B.R.R. v. Philadelphia & Havre de Grace Steam Towboat Co., 64 U.S. 209, 16 L. Ed. 433, 1859 U.S. LEXIS 763 (1860).

This provision does not of itself give the federal courts jurisdiction of maritime crimes, but it confers upon congress the power to define such crimes and provide for their punishment. Manchester v. Massachusetts, 139 U.S. 240, 11 S. Ct. 559, 35 L. Ed. 159, 1891 U.S. LEXIS 2378 (U.S. Mar. 6, 1891); Imbrovek v. Hamburg-American Steam Packet Co., 190 F. 229, 1911 U.S. Dist. LEXIS 156 (D. Md. 1911), aff'd, 193 F. 1019, 1912 U.S. App. LEXIS 1110 (4th Cir. Md. 1912).

An act of congress attempting to permit the application of state workers' compensation laws to injuries within the admiralty and maritime jurisdiction is unconstitutional. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 1920 U.S. LEXIS 1457, 11 A.L.R. 1145 (1920), superseded by statute as stated in, Garvin v. Alumax of South Carolina, Inc., 787 F.2d 910, 1986 U.S. App. LEXIS 29852, 1987 A.M.C. 402 (6th Cir. 1986), superseded by statute as stated in, Guilles v. Sea-Land Serv., 820 F. Supp. 744, 1993 U.S. Dist. LEXIS 4881, 1993 A.M.C. 2761 (6th Cir. 1993), superseded by statute as stated in, Guilles v. Sea-Land Serv., 12 F.3d 381, 1993 U.S. App. LEXIS 33646, 1995 A.M.C. 1223 (6th Cir. 1993) .

Acceptance of a state compensation act was held to exclude admiralty jurisdiction of claim of longshoreman for injuries on vessel in navigable river. Rickert v. State Industrial Accident Comm'n, 122 Ore. 565, 259 P. 205, 1927 Ore. LEXIS 196, 56 A.L.R. 348 (1927).

An act of congress setting up a system of workers' compensation for injuries sustained by employees on navigable waters of the United States does not violate U.S. Const. art. 3, § 2, cl. 1. Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598, 1932 U.S. LEXIS 773 (1932).

Where congress approved interstate compact for formation of commission for construction of interstate bridge a “sue and be sued clause” in such compact waived immunity of states from suit so that tort action under Jones Act could be brought in federal court. Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804, 1959 U.S. LEXIS 1763 (1959).

The standard for the determination of maritime tort jurisdiction is two-pronged. The first prong requires that the wrong must occur in navigable waters, and the second prong requires that the wrong must bear a significant relationship to traditional maritime activity. Reecer v. McKinnon Bridge Co., 745 F. Supp. 485, 1990 U.S. Dist. LEXIS 11067 (M.D. Tenn. 1990).

11. — —Liens.

States have no authority to create maritime liens, nor can they confer jurisdiction upon state courts to enforce such liens. The Belfast, 74 U.S. 624, 19 L. Ed. 266, 1868 U.S. LEXIS 1046 (1868).

If a vessel, engaged in navigation on a navigable river, injures property situate upon land, state courts may enforce a lien given by a state statute against such vessel for the damages. Johnson v. Chicago & Pac. Elevator Co., 119 U.S. 388, 7 S. Ct. 254, 30 L. Ed. 447, 1886 U.S. LEXIS 2004 (1886).

A state has a right to provide for liens in favor of materialmen for necessaries furnished to a vessel in her home port or a port of the state to which she belongs, though the contract to furnish the same is a maritime contract; and such liens may be enforced by proceedings in rem in the United States courts. The Robert W. Parsons, 191 U.S. 17, 24 S. Ct. 8, 48 L. Ed. 73, 1903 U.S. LEXIS 1495 (1903).

Exclusiveness of jurisdiction, state legislation affecting maritime law, common-law remedy. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S. Ct. 501, 62 L. Ed. 1171, 1918 U.S. LEXIS 1920 (1918).

12. —Cases with United States as Party.

When the United States is only a formal party, a court of equity will administer the equities between the real parties to the same extent as if they were the nominal litigants. United States v. Beebe, 127 U.S. 338, 8 S. Ct. 1083, 32 L. Ed. 121, 1888 U.S. LEXIS 1993 (1888).

The constitution does not exempt a state from suit by the general government. United States v. Texas, 143 U.S. 621, 12 S. Ct. 488, 36 L. Ed. 285, 1892 U.S. LEXIS 2045 (U.S. 1892).

The federal courts have jurisdiction of cases in which the United States is plaintiff without regard to the amount in controversy. United States v. Sayward, 160 U.S. 493, 16 S. Ct. 371, 40 L. Ed. 508, 1895 U.S. LEXIS 2371 (1895).

Congress may provide that a writ of error may be prosecuted by the United States when an indictment is quashed, although a defendant is not given the same right when a demurrer to an indictment is overruled. United States v. Bitty, 208 U.S. 393, 28 S. Ct. 396, 52 L. Ed. 543, 1908 U.S. LEXIS 1450 (1908).

The United States cannot be sued without its consent. Louisiana v. McAdoo, 234 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506, 1914 U.S. LEXIS 1115 (1914).

13. —Controversies Between States.

The controversy must be one arising directly between the states, and not one in the vindication of grievances of particular individuals. Louisiana v. Texas, 176 U.S. 1, 20 S. Ct. 251, 44 L. Ed. 347, 1900 U.S. LEXIS 1715 (1900).

The supreme court of the United States has original jurisdiction of an action by a state against another state in a controversy between such states as to their rights in streams of water which flow through both of such states. Kansas v. Colorado, 185 U.S. 125, 22 S. Ct. 552, 46 L. Ed. 838, 1902 U.S. LEXIS 2248 (1902).

The supreme court has jurisdiction over a suit by one state to enforce bonds issued by another state, although the bonds were originally owned by an individual who donated them to the complainant state. South Dakota v. North Carolina, 192 U.S. 286, 24 S. Ct. 269, 48 L. Ed. 448, 1904 U.S. LEXIS 995 (1904).

The entire judicial power of the United States is vested in its courts, and the supreme court has jurisdiction over controversies between two or more states. Kansas v. Colorado, 206 U.S. 46, 27 S. Ct. 655, 51 L. Ed. 956, 1907 U.S. LEXIS 1145 (1907).

14. —Controversies Between State and Citizen of Another State.

If a rule, either at common law or in equity, issues out of the supreme court of the United States against a state, it should be served upon the chief magistrate and attorney general of the state. Kentucky v. Dennison, 65 U.S. 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1860).

The federal jurisdiction does not embrace now the power to entertain a suit brought against a state without its consent. Duhne v. New Jersey, 251 U.S. 311, 40 S. Ct. 154, 64 L. Ed. 280, 1920 U.S. LEXIS 1707 (1920).

15. —Controversies Between Citizens of Different States.

Where parties of the same side have joint interests, each of them must be competent to sue or be sued in order to give the federal court jurisdiction. Strawbridge v. Curtiss, 7 U.S. 267, 2 L. Ed. 435, 1806 U.S. LEXIS 331 (1806), overruled in part, Louisville, C. & C. R. Co. v. Letson, 43 U.S. 497, 11 L. Ed. 353, 1844 U.S. LEXIS 344 (1844), superseded by statute as stated in, Doremas v. Bennett, 1847 U.S. App. LEXIS 502, 7 F. Cas. 916 (C.C.D. Mich. 1847), superseded by statute as stated in, Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 1983 U.S. App. LEXIS 28133 (1st Cir. Mass. 1983), superseded by statute as stated in, Evans v. Walter Indus., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 97556 (N.D. Ala. Mar. 15, 2006), superseded by statute as stated in, Caribbean Telcoms., Ltd. v. Guy. Tel. & Tel. Co., 594 F. Supp. 2d 522, 2009 U.S. Dist. LEXIS 5478 (D.N.J. 2009).

The defendant must be a “citizen,” and not simply a “resident,” of another state. Brown v. Keene, 33 U.S. 112, 8 L. Ed. 885, 1834 U.S. LEXIS 569 (1834).

Residence or domicile is evidence of citizenship. Shelton v. Tiffin, 47 U.S. 163, 12 L. Ed. 387, 1848 U.S. LEXIS 306 (1848).

The constitution imposes no limitation on the class of cases involving controversies between citizens of different states to which the judicial power of the United States may be extended; and it rests entirely with congress to determine when and upon what conditions the power may be invoked. Gaines v. Fuentes, 92 U.S. 10, 23 L. Ed. 524, 1875 U.S. LEXIS 1720 (1875).

The jurisdiction of the federal courts in cases of diverse citizenship cannot be impaired or abridged by a state statute. Barrow S.S. Co. v. Kane, 170 U.S. 100, 18 S. Ct. 526, 42 L. Ed. 964, 1898 U.S. LEXIS 1531 (1898).

The District of Columbia and the territories are not states, within the judicial clause of the constitution giving jurisdiction in cases between citizens of different states. Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088, 1901 U.S. LEXIS 286 (1901).

In a suit by a guardian, the citizenship of the guardian and not that of the ward determines the question of federal jurisdiction. Mexican Cent. Ry. v. Eckman, 187 U.S. 429, 23 S. Ct. 211, 47 L. Ed. 245, 1903 U.S. LEXIS 1661 (1903).

Courts of the United States have jurisdiction of proceedings between citizens of different states when the purpose is to condemn lands under the right of eminent domain and the amount in controversy is sufficient to confer jurisdiction on such courts. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (1905).

The wife of a citizen who has justifiably left her husband and removed to another state, with no intention of living elsewhere, thereby acquired a domicile in the latter state so that she may maintain an action in the federal courts against a citizen of the state in which her husband resides. Williamson v. Osenton, 232 U.S. 619, 34 S. Ct. 442, 58 L. Ed. 758, 1914 U.S. LEXIS 1330 (1914).

Even though Tennessee had the right to retain governmental immunity, once it elected to submit itself to litigation of certain claims it subjected such litigation to the provisions of the United States constitution regarding claims between citizens of different states as set out in U.S. Const. art. 3, § 2, and the supremacy clause as set out in U.S. Const. art. 6; therefore, federal district court did not lack jurisdiction under T.C.A. § 29-20-307 to hear suit against governmental entity of Tennessee. Metaljan v. Memphis-Shelby County Airport Authority, 752 F. Supp. 834, 1990 U.S. Dist. LEXIS 16904 (W.D. Tenn. 1990).

16. —States and Counties as Citizens.

A county has been held to be a citizen by the same reasoning that is applied to private corporations. McCoy v. Washington County, 1862 U.S. App. LEXIS 561, 15 F. Cas. 1341 (C.C.W.D. Pa. 1862) (No. 8,731).

States are not citizens within the meaning of the constitution or acts of congress regulating the jurisdiction of the United States courts. Minnesota v. Northern Sec. Co., 194 U.S. 48, 24 S. Ct. 598, 48 L. Ed. 870, 1904 U.S. LEXIS 649 (1904).

17. —Corporations as Citizens.

Joint stock association or partnership is not within the rule, although authorized to sue in its association name by state law. Chapman v. Barney, 129 U.S. 677, 9 S. Ct. 426, 32 L. Ed. 800, 1889 U.S. LEXIS 1718 (1889).

When a state corporation is sued or is suing in the courts of the United States, the legal presumption is that such corporation is composed of the citizens of the state under the laws of which such body is incorporated, and is, therefore, a citizen of such state for the purpose of suing or being sued in the federal courts; and, if such a corporation is permitted by the laws of another state, upon complying with certain conditions, to own property and transact business in such state, such corporation, by an acceptance of such privileges, will not become a citizen of such other state so that a citizen of the state wherein such corporation was organized may sue such corporation in the federal courts of the state where such corporation has been allowed and given the privilege of transacting business. St. Louis & S. F. R. Co. v. James, 161 U.S. 545, 16 S. Ct. 621, 40 L. Ed. 802, 1896 U.S. LEXIS 2186 (1896).

A corporation is a citizen of the state which created it within the meaning of the constitution. Barrow S.S. Co. v. Kane, 170 U.S. 100, 18 S. Ct. 526, 42 L. Ed. 964, 1898 U.S. LEXIS 1531 (1898), reviewing earlier cases.

Corporations, organized under the laws of a state, do not become citizens of other states in which they are permitted to do business. Missouri Pac. Ry. v. Castle, 224 U.S. 541, 32 S. Ct. 606, 56 L. Ed. 875, 1912 U.S. LEXIS 2322 (1912).

18. —Claims to Land Under Grants from Different States.

The circuit court of district of Kentucky had jurisdiction of an action between citizens of Kentucky claiming lands under grants by Virginia and Kentucky, but upon warrants issued by Virginia prior to separation of Kentucky from Virginia. Colson v. Lewis, 15 U.S. 377, 4 L. Ed. 266, 1817 U.S. LEXIS 415 (1817).

19. —Controversies with Foreign States.

The federal courts have no jurisdiction over suits between aliens. A state or a citizen thereof must be the adverse party. Jackson v. Twentyman, 27 U.S. 136, 7 L. Ed. 374, 1829 U.S. LEXIS 394 (1829).

An Indian tribe or nation is not a foreign state within the meaning of this provision. Cherokee Nation v. Georgia, 30 U.S. 1, 8 L. Ed. 25, 1831 U.S. LEXIS 337 (1831).

20. —Removal Proceedings.

An absolute agreement not to remove a cause from a state court to a court of the United States is void. Home Ins. Co. v. Morse, 87 U.S. 445, 20 Wall. 445, 22 L. Ed. 365, 1874 U.S. LEXIS 1433, 49 How. Pr. 314; Doyle v. Continental Ins. Co., 94 U.S. 535, 24 L. Ed. 148, 1876 U.S. LEXIS 1903 (1876), questioned, Frost & Frost Trucking Co. v. Railroad Com. of California, 271 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 1926 U.S. LEXIS 913, 47 A.L.R. 457 (1926), overruled, Terral v. Burke Constr. Co., 257 U.S. 529, 42 S. Ct. 188, 66 L. Ed. 352, 1922 U.S. LEXIS 2434, 21 A.L.R. 186 (1922).

Congress has power to authorize removal of criminal cases for alleged offenses against state laws from the state to the federal court when a federal question arises in them. Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648, 1879 U.S. LEXIS 1829 (1880).

Congress may prescribe a statute of limitations for removable cases which is binding on the state courts as well as on the federal courts. Mitchell v. Clark, 110 U.S. 633, 4 S. Ct. 170, 28 L. Ed. 279, 1884 U.S. LEXIS 1725 (1884).

21. —Judicial Restraint.

The policy of judicial restraint is consistent with the separation of powers inherent in the constitutional scheme and the idea that courts should be reluctant to act absent a specific case brought within the constitutional grant of jurisdiction. Muller Optical Co. v. EEOC, 743 F.2d 380, 1984 U.S. App. LEXIS 17016 (6th Cir. 1984).

22. —Jurisdiction of State Courts.

Congress may authorize the judicial officers of the states to exercise such power as is ordinarily given to officers of courts not of record, such as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judicial power rather than a part of the judicial power itself. Robertson v. Baldwin, 165 U.S. 275, 17 S. Ct. 326, 41 L. Ed. 715, 1897 U.S. LEXIS 1968 (1897).

Rights arising under the regulations prescribed by the federal Employers' Liability Act may be enforced as of right in the courts of the state when their jurisdiction as fixed by local laws is adequate to the occasion. Second Employers' Liab. Cases, 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 1912 U.S. LEXIS 2212 (1912).

23. —Presumption of Federal Jurisdiction.

The presumption is that a federal court lacks jurisdiction until the contrary is demonstrated. Good v. Krauss, 457 F. Supp. 50, 1978 U.S. Dist. LEXIS 17955 (E.D. Tenn. 1978).

The party seeking to invoke federal jurisdiction must demonstrate that the case is within the competence of such a court. Citizens & S. Nat'l Bank v. Auer, 514 F. Supp. 630, 1977 U.S. Dist. LEXIS 16146 (E.D. Tenn. 1977).

Since, unlike many state courts, federal courts are courts of limited jurisdiction, the district court is not permitted to assume the existence of its jurisdiction, for without a finding that there exists federal jurisdiction over a particular claim of the plaintiff, the court is without power to proceed; such a jurisdictional inquiry is mandatory. Campbell v. United States, 496 F. Supp. 36, 1980 U.S. Dist. LEXIS 12815 (E.D. Tenn. 1980).

24. —Pleading Federal Jurisdiction.

In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctively and positively averred in the pleadings. Citizens & S. Nat'l Bank v. Auer, 514 F. Supp. 630, 1977 U.S. Dist. LEXIS 16146 (E.D. Tenn. 1977).

Defective allegations of jurisdiction may be amended, upon terms, in the trial courts. Citizens & S. Nat'l Bank v. Auer, 514 F. Supp. 630, 1977 U.S. Dist. LEXIS 16146 (E.D. Tenn. 1977).

25. —Pendent State Law Claims.

Federal court, in civil rights action, had no jurisdiction over pendent state-law claims in view of limitations on suability in § 29-20-307. Beddingfield v. Pulaski, 666 F. Supp. 1064, 1987 U.S. Dist. LEXIS 7844 (M.D. Tenn. 1987).

The exclusive jurisdiction and venue provisions of the Tennessee Governmental Tort Liability Act (TGTLA), title 29, chapter 20, did not preclude the federal court from exercising supplemental jurisdiction over defendants where the non-TGTLA claims comprised the great weight of the lawsuit and plaintiff's federal claims clearly predominated over the state law claims. Malone v. Fayette County, 86 F. Supp. 2d 797, 2000 U.S. Dist. LEXIS 2641 (W.D. Tenn. 2000).

26. —Standing.

Citizens of Tennessee and unelected candidate for United States senate did not have standing to contest successful candidate's receipt of out of state funds. Hooker v. Sasser, 893 F. Supp. 764, 1995 U.S. Dist. LEXIS 10500 (M.D. Tenn. 1995).

The assertion of simple physical possession of property as a basis for standing to challenge property's forfeiture must be accompanied by factual allegations regarding how the claimant came to possess the property, the nature of the claimant's relationship to the property, and/or the story behind the claimant's control of the property. United States v. $ 515,060.42 in United States Currency, 152 F.3d 491, 1998 U.S. App. LEXIS 10411, 1998 FED App. 161P (6th Cir. 1998), rehearing denied, — F.3d —, 1998 U.S. App. LEXIS 21512 (6th Cir. Aug. 14, 1998) .

As a matter of law, litigation expenses alone do not constitute injury sufficient to support standing. Tennessee Protection & Advocacy v. Board of Educ., 24 F. Supp. 2d 808, 1998 U.S. Dist. LEXIS 17001 (M.D. Tenn. 1998).

Because prudential limitations do not apply to a protection and advocacy organization filing a claim under the Individuals with Disabilities Education Act, such an organization can establish standing if it filed suit on behalf of specific individuals who allegedly suffered concrete harm, but where there is no specifically injured plaintiff on whose behalf the claim is filed, the organization must allege direct injury-in-fact to itself to satisfy the case or controversy requirement of U.S. Const. art. 3.Tennessee Protection & Advocacy v. Board of Educ., 24 F. Supp. 2d 808, 1998 U.S. Dist. LEXIS 17001 (M.D. Tenn. 1998).

In determining whether the plaintiff has a personal stake sufficient to confer standing, the focus should be on whether the complaining party has alleged an injury in fact, economic or otherwise, which distinguishes that party in relation to the alleged violations from the undifferentiated mass of the public. Mayhew v. Wilder, 46 S.W.3d 760, 2001 Tenn. App. LEXIS 17 (Tenn. Ct. App. 2001).

Even when a case falls within the parameters of U.S. Const. art. 3 jurisdiction, a party claiming standing must also demonstrate that prudential considerations do not further limit the exercise of a court's power to hear a case. Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

The prudential principles of standing under U.S. Const. art. 3 and the trustee's powers under the bankruptcy code are coextensive. Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

There are three prudential limits on standing ordinarily counseling against the exercise of jurisdiction: (1) Alleging a generalized grievance not particular to the plaintiff; (2) Asserting the legal rights and interests of a third party; and (3) Claiming an injury outside the zone of interests of the statute providing the cause of action. Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

To establish standing under the “case or controversy” requirement, a plaintiff: (1) Must have suffered some actual or threatened injury due the to alleged illegal conduct (the injury in fact element); (2) The injury must be fairly traceable to the challenged action (the causation element); and (3) There must be a substantial likelihood that the relief requested will redress or prevent plaintiff's injury (the redressability element). Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

When a plaintiff asserts standing based on a threatened injury, plaintiff must show that the threatened injury is so imminent as to be certainly impending; therefore, the alleged injury cannot be conjectural or hypothetical. Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

The prudential principles of standing under the “case or controversy” requirement and the trustee's powers under the bankruptcy code are coextensive. Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 2002 FED App. 26P, 2002 U.S. App. LEXIS 747 (2002).

Plaintiffs, white police officers, lacked standing to make claim of racial preference against the city where plaintiffs neither alleged nor showed that the city would have promoted them if the city had used a race-neutral system in its promotions of police officers. Aiken v. Hackett, 281 F.3d 516, 2002 FED App. 61P, 2002 U.S. App. LEXIS 2522 (6th Cir. 2002), cert. denied, 537 U.S. 817, 123 S. Ct. 87, 154 L. Ed. 2d 23, 2002 U.S. LEXIS 5550 (2002).

Plaintiff parents met their burden of showing standing in case claiming county school board and superintendent were violating the establishment clause of U.S. Const. amend. 1, by teaching the bible as religious truth in the public schools, where parents submitted sworn affidavits stating they were residents of the county and they had two minor children who attended elementary school in the county public school system. Doe v. Porter, 188 F. Supp. 2d 904, 2002 U.S. Dist. LEXIS 2986 (E.D. Tenn. 2002), aff'd, 370 F.3d 558, 2004 FED App. 171P, 2004 U.S. App. LEXIS 11031 (6th Cir. Tenn. 2004).

27. Clause 2.

28. —Original Jurisdiction.

29. — —Ambassadors and Consuls.

This provision refers to diplomatic and consular representatives accredited to the United States by foreign powers, and not to those representing this country abroad. Ex parte Gruber, 269 U.S. 302, 46 S. Ct. 112, 70 L. Ed. 280, 1925 U.S. LEXIS 30 (1925).

30. — —Cases in Which State is a Party.

The state must be either nominally or substantially a party; it is not enough that a state may be consequently affected. Fowler v. Lindsey, 3 U.S. 411, 1 L. Ed. 658, 1799 U.S. LEXIS 232 (1799).

The jurisdiction conferred by U.S. Const. art. 3, § 2, cl. 2 is not exclusive, and congress may permit suits by a state to be brought in inferior federal court. Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 4 S. Ct. 437, 28 L. Ed. 482, 1884 U.S. LEXIS 1802 (1884).

The supreme court has no jurisdiction of suits between states to compel the performance of obligations which, if the states had been independent nations, could not have been enforced judicially but only through the political departments of their governments. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 S. Ct. 1370, 32 L. Ed. 239, 1888 U.S. LEXIS 1989 (1888), overruled in part, Milwaukee County v. M. E. White Co., 56 S. Ct. 229, 296 U.S. 268, 80 L. Ed. 220, 1935 U.S. LEXIS 576 (1935).

For the purpose of determining jurisdiction as conferred by U.S. Const. art. 3, § 2, cl. 2, it is immaterial whether the state is plaintiff or defendant. Minnesota v. Hitchcock, 185 U.S. 373, 22 S. Ct. 650, 46 L. Ed. 954, 1902 U.S. LEXIS 2201 (1902).

A suit brought by a citizen against his own state without its consent is not drawn within the original jurisdiction of the federal supreme court by this provision, since U.S. Const. art. 3, § 2, cl. 2 merely distributes into original and appellate jurisdiction the jurisdiction previously conferred, and does not itself grant any new jurisdiction. Duhne v. New Jersey, 251 U.S. 311, 40 S. Ct. 154, 64 L. Ed. 280, 1920 U.S. LEXIS 1707 (1920).

31. — — —Boundaries.

The supreme court has original jurisdiction of a question involving the boundary line between a state and a territory. United States v. Texas, 143 U.S. 621, 12 S. Ct. 488, 36 L. Ed. 285, 1892 U.S. LEXIS 2045 (U.S. 1892).

32. — — —Civil Rights.

A suit to restrain the governor of a state from invading property rights under color of state constitutional and statutory provisions is not a suit against the state. Sterling v. Constantin, 287 U.S. 378, 53 S. Ct. 190, 77 L. Ed. 375, 1932 U.S. LEXIS 793 (1932) But see Ohio Inns, Inc. v. Nye, 542 F.2d 673, 1976 U.S. App. LEXIS 6788 (6th Cir. 1976), cert. denied, 430 U.S. 946, 97 S. Ct. 1583, 51 L. Ed. 2d 794, 1977 U.S. LEXIS 1308 (1977).

33. — — —Crimes.

U.S. Const. art. 3, § 2, cl. 2 does not give the supreme court jurisdiction of a suit by a state to enjoin citizens of another state from violating the criminal laws of the complaining state. Oklahoma ex rel. W. v. Gulf, Colo. & S.F. Ry., 220 U.S. 290, 31 S. Ct. 437, 55 L. Ed. 469, 1911 U.S. LEXIS 1676 (1911).

34. — — —Public Safety.

The acts of one state in maintaining a system of public works which endangers the health and prosperity of the inhabitants of another state furnish sufficient basis for a controversy within the original jurisdiction of the supreme court. Missouri v. Illinois, 180 U.S. 208, 21 S. Ct. 331, 45 L. Ed. 497, 1901 U.S. LEXIS 1298 (1901).

35. —Appellate Jurisdiction.

The supreme court exercises appellate jurisdiction only in accordance with the acts of congress on that subject. Wiscart v. Dauchy, 3 U.S. 321, 1 L. Ed. 619, 1796 U.S. LEXIS 410 (1796); Colorado Cent. Consol. Mining Co. v. Turck, 150 U.S. 138, 14 S. Ct. 35, 37 L. Ed. 1030, 1893 U.S. LEXIS 2365 (1893); St. Louis, I.M. & S. Ry. v. Taylor, 210 U.S. 281, 28 S. Ct. 616, 52 L. Ed. 1061, 1908 U.S. LEXIS 1509 (1908).

The appellate jurisdiction of the supreme court is capable of embracing every case enumerated in the constitution which is not exclusively to be decided by way of original jurisdiction; but the exercise of appellate jurisdiction is not limited to the supreme court. Congress has the undoubted power to create a succession of inferior tribunals, in each of which at may vest appellate as well as original jurisdiction. Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (U.S. Mar. 20, 1816).

The affirmative description in U.S. Const. art. 3, § 2, cl. 2 implies a negation of the exercise of such appellate power as is not comprehended within it. Ex parte McCardle, 74 U.S. 506, 19 L. Ed. 264, 1868 U.S. LEXIS 1028 (1868).

The appellate jurisdiction of the supreme court, conferred by the constitution, extends to all cases within the judicial power of the United States, except those of which the supreme court is given original jurisdiction; but the appellate jurisdiction is subject to such exceptions, and must be exercised under such regulations as congress may make. Ex parte Yerger, 75 U.S. 85, 19 L. Ed. 332, 1868 U.S. LEXIS 1085 (1869).

The supreme court is vested with judicial power only, and has no jurisdiction to review a decision of the court of appeals of the District of Columbia given on appeal from an order of the federal radio commission refusing renewal of a broadcasting license. Federal Radio Comm'n v. GE Co., 281 U.S. 464, 50 S. Ct. 389, 74 L. Ed. 969, 1930 U.S. LEXIS 402 (1930).

36. — —Inferior Courts.

The judicial action of all inferior courts established by congress may be subjected to the appellate jurisdiction of the supreme court. United States v. Coe, 155 U.S. 76, 15 S. Ct. 16, 39 L. Ed. 76, 1894 U.S. LEXIS 2250 (1894).

The supreme court cannot accept the certification by an inferior court of a question which embraces the whole case, since to do so would be an exercise of original jurisdiction in violation of the constitution. Wheeler Lumber Bridge & Supply Co. v. United States, 281 U.S. 572, 50 S. Ct. 419, 74 L. Ed. 1047, 1930 U.S. LEXIS 740 (1930).

37. — —State Courts.

The appellate power of the United States extends to cases pending in the state courts. Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (U.S. Mar. 20, 1816).

38. — —Writs.

The supreme court has no authority to issue writs of mandamus except in the exercise of its appellate jurisdiction or where necessary to enable it to exercise such jurisdiction. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803).

The supreme court may issue a writ of habeas corpus in the exercise of its appellate jurisdiction. Ex parte Watkins, 32 U.S. 568, 8 L. Ed. 786, 1833 U.S. LEXIS 361 (1833).

39. Clause 3.

40. —Construction.

This provision does not apply to trials in state courts. Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 10 S. Ct. 424, 33 L. Ed. 801, 1890 U.S. LEXIS 1945 (1890), overruled in part, Bloom v. Illinois, 88 S. Ct. 1477, 391 U.S. 194, 20 L. Ed. 2d 522, 1968 U.S. LEXIS 2993 (1968).

41. —Crimes.

A proceeding for contempt is not the trial of a crime within the meaning of U.S. Const. art. 3, § 2, cl. 3. In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092, 1895 U.S. LEXIS 2279 (1895).

This provision is to be interpreted in the light of the common law, according to which petty offenses might be proceeded against summarily before a magistrate sitting without a jury. District of Columbia v. Colts, 282 U.S. 63, 51 S. Ct. 52, 75 L. Ed. 177, 1930 U.S. LEXIS 6 (1930), superseded by statute as stated in, United States v. Floyd, 345 F. Supp. 283, 1972 U.S. Dist. LEXIS 12820 (1972).

42. —Trial by Jury.

The constitutional right to trial by jury may be waived. Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 1930 U.S. LEXIS 382, 70 A.L.R. 263 (1930), overruled in part, Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, 1970 U.S. LEXIS 98, 53 Ohio Op. 2d 55 (1970), overruled, United States v. Turrietta, 696 F.3d 972, 2012 U.S. App. LEXIS 18364 (Aug. 29, 2012).

There is nothing in the federal constitution that provides or guarantees an accused that the same jury that finds him guilty shall fix his punishment. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

43. —Place of Trial.

U.S. Const. art. 3, § 2 has no reference to trials in state courts. Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 9 S. Ct. 28, 32 L. Ed. 352, 1888 U.S. LEXIS 2199 (1888).

Congress may provide that the trial of offenses committed out of the jurisdiction of any particular state or district shall be in the district where the offender is found, or into which he is first brought. Jones v. United States, 137 U.S. 202, 11 S. Ct. 80, 34 L. Ed. 691, 1890 U.S. LEXIS 2079 (1890).

Congress may fix the place of trial after the offense has been committed. Cook v. United States, 138 U.S. 157, 11 S. Ct. 268, 34 L. Ed. 906, 1891 U.S. LEXIS 2074 (U.S. Jan. 26, 1891).

There is no principle of constitutional law that entitles an accused to be tried in the place of his residence. Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 1910 U.S. LEXIS 1912 (1910).

NOTES TO DECISIONS

1. Clause 1.

2. —Treason.

To constitute levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. The enlistment of men with the intention that they shall serve against the government is not sufficient. Ex parte Bollman, 8 U.S. 75, 2 L. Ed. 554, 1807 U.S. LEXIS 369 (1807), superseded by statute as stated in, Ex parte Monti, 79 F. Supp. 651, 1948 U.S. Dist. LEXIS 2347 (D.N.Y. 1948).

“Treason” embraces the existence both of a state of mind and the commission of overt acts. United States v. Werner, 247 F. 708, 1918 U.S. Dist. LEXIS 1250 (E.D. Pa. 1918).

The offense of unlawful belligerency, even when committed by a citizen is distinct from the crime of treason. Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3, 1942 U.S. LEXIS 1119 (1942), superseded by statute in concuring opinion, Hamdan v. Rumsfeld, 165 L. Ed. 2d 723, 126 S. Ct. 2749, 548 U.S. 557, 2006 U.S. LEXIS 5185 (2006).

The crime of treason consists of two elements: (1) Adherence to the enemy; and (2) Rendering him aid and comfort. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

3. —Place of Treason.

Treason may be committed outside the United States, since statute passed shortly after constitutional provision was written defines treason as “giving aid and comfort within the United States or elsewhere.” Gillars v. United States, 182 F.2d 962, 1950 U.S. App. LEXIS 2893 (D.C. Cir. 1950), superseded by statute as stated in, In re Villanueva, 1984 BIA LEXIS 14 (B.I.A. 1984).

4. —Proof of Treason.

It is only overt acts by the accused that the constitution expressly requires to be proved by the testimony of two witnesses. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

5. Clause 5.

6. —Sentence for Treason.

No abuse of judicial discretion was shown in fixing sentence in prosecution for treason, although presentence investigation took place in the chambers of the judge. Stephan v. United States, 133 F.2d 87, 1943 U.S. App. LEXIS 3759 (6th Cir. Mich. 1943), cert. denied, 318 U.S. 781, 63 S. Ct. 858, 87 L. Ed. 1148, 1943 U.S. LEXIS 846 (1943), rehearing denied, 319 U.S. 783, 63 S. Ct. 1172, 87 L. Ed. 1727, 1943 U.S. LEXIS 652 (1943).

NOTES TO DECISIONS

1. Construction.

The public acts of every state shall be given the same effect by the courts of another state that they have by law or usage at home. Courts of the United States take notice of the laws of each state. Chicago & A.R.R. v. Wiggins Ferry Co., 119 U.S. 615, 7 S. Ct. 398, 30 L. Ed. 519, 1877 U.S. LEXIS 1720 (1877).

This provision and the act of congress, passed pursuant thereto, establish a rule of evidence rather than of jurisdiction. While they make the record of a judgment, rendered after due notice in one state, conclusive evidence in the courts of another state or of the United States, of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered, or of the court in which it is offered in evidence. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 S. Ct. 1370, 32 L. Ed. 239, 1888 U.S. LEXIS 1989 (1888), overruled in part, Milwaukee County v. M. E. White Co., 56 S. Ct. 229, 296 U.S. 268, 80 L. Ed. 220, 1935 U.S. LEXIS 576 (1935).

The provision of the constitution requiring full faith and credit to be given to the public acts, records and judicial proceedings of each state in other states applies only when questions arise in courts which bring such acts, records, or proceedings in issue, and has nothing to do with the acts of corporations or individuals. Minnesota v. Northern Sec. Co., 194 U.S. 48, 24 S. Ct. 598, 48 L. Ed. 870, 1904 U.S. LEXIS 649 (1904).

Congress has power to declare that the same faith and credit that is given by courts to public acts, records, and judicial proceedings of other states shall be given to similar acts, records, and proceedings of the territories. Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55, 29 S. Ct. 397, 53 L. Ed. 695, 1909 U.S. LEXIS 1853 (1909).

The courts of a state must give the same full force and effect to the constitution of another state as they are required to give to its judicial proceedings. Smithsonian Inst. v. St. John, 214 U.S. 19, 29 S. Ct. 601, 53 L. Ed. 892, 1909 U.S. LEXIS 1890 (1909).

The law of a sister state is not the subject of judicial notice for the purpose of the application of the full faith and credit guaranty. Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 48 S. Ct. 124, 72 L. Ed. 277, 1927 U.S. LEXIS 279 (1927).

Although a final judgment in a sister state is ordinarily conclusive upon the merits in every other state, Tennessee courts are not obliged to give full faith and credit to any judgment of a state which they hold to be violative of Tennessee's public policy or the federal constitution. In re Riggs, 612 S.W.2d 461, 1980 Tenn. App. LEXIS 410 (Tenn. Ct. App. 1980), cert. denied, Riggs v. Terrazas, 450 U.S. 921, 101 S. Ct. 1370, 67 L. Ed. 2d 349, 1981 U.S. LEXIS 876 (1981).

Mere recognition of a Kentucky judgment, which was based on a law more narrow in scope than the Tennessee counterpart, did not in and of itself violate Tennessee public policy; although Tenn. Sup. Ct. R. 9, § 27.1 would prohibit in Tennessee the malicious prosecution claim filed by the lawyer against the client, the appellate court had to conclude that enrollment of the Kentucky judgment did not violate Tennessee public policy. Seiller & Handmaker, L.L.P. v. Finnell, 165 S.W.3d 273, 2004 Tenn. App. LEXIS 711 (Tenn. Ct. App. Oct. 27, 2004), appeal denied, Seiller & Handmaker, LLP v. Finnell, — S.W.3d —, 2005 Tenn. LEXIS 338 (Tenn. Mar. 28, 2005).

2. Public Acts and Records.

The decision by a state court that a right of action accruing by virtue of a statute of another state cannot be enforced in the state where suit is brought is not a failure to give full faith and credit to the laws of the state enacting such statute. Finney v. Guy, 189 U.S. 335, 23 S. Ct. 558, 47 L. Ed. 839, 1903 U.S. LEXIS 1357 (1903).

A transitory cause of action created by statute in one state may be pursued in the courts of another state although such statute expressly provides that all actions thereunder must be brought in the courts of that state and not elsewhere. Tennessee Coal, Iron & R.R. v. George, 233 U.S. 354, 34 S. Ct. 587, 58 L. Ed. 997, 1914 U.S. LEXIS 1255 (1914).

No question under the full faith and credit clause, open to review in the federal supreme court, is presented where the question is merely upon the interpretation or construction of statute of a sister state; the validity of such statute not being questioned. Western Life Indem. Co. v. Rupp, 235 U.S. 261, 35 S. Ct. 37, 59 L. Ed. 220, 1914 U.S. LEXIS 1020 (1914).

The full faith and credit to be accorded to statutes means that such are to have the force and effect to which entitled in the home state. Flahive v. Missouri, K. & T.R.R., 131 Misc. 586, 227 N.Y.S. 587, 1928 N.Y. Misc. LEXIS 756 (1928).

A state statute is a “public act” within the meaning of U.S. Const. art. 4, § 1. Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 52 S. Ct. 571, 76 L. Ed. 1026, 1932 U.S. LEXIS 599, 82 A.L.R. 696 (1932), overruled in part, Crider v. Zurich Ins. Co., 13 L. Ed. 2d 641, 85 S. Ct. 769, 380 U.S. 39, 1965 U.S. LEXIS 1731 (1965).

3. Judicial Proceedings.

A judgment in a sister state is conclusive evidence of a judgment, but is not conclusive evidence on the merits. Winchester v. Evans, 3 Tenn. 420, 1 Cooke, 1813 Tenn. LEXIS 56 (1813).

The full faith and credit clause must be interpreted in connection with other provisions of the constitution, and therefore no state can obtain in the tribunals of other jurisdictions full faith and credit for its judicial proceedings if they are wanting in the due process of law enjoined by the fundamental law. Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 27 S. Ct. 236, 51 L. Ed. 345, 1907 U.S. LEXIS 1525 (1907).

The decision of a state court that a person at the time of his death was a resident of such state is binding upon the courts of other states as to all persons. Tilt v. Kelsey, 207 U.S. 43, 28 S. Ct. 1, 52 L. Ed. 95, 1907 U.S. LEXIS 1199 (1907).

The refusal of a state court to treat a decree of dismissal in a federal court, as conclusive of a point left open, did not deny the full faith and credit to which it was entitled. Swift v. McPherson, 232 U.S. 51, 34 S. Ct. 239, 58 L. Ed. 499, 1914 U.S. LEXIS 1459 (1914).

The constitutional obligation of a state to give full faith and credit to the judgments of courts of other states cannot be escaped by the simple device of denying jurisdiction in such cases to courts otherwise competent. Kenney v. Supreme Lodge of World, Loyal Order of Moose, 252 U.S. 411, 40 S. Ct. 371, 64 L. Ed. 638, 1920 U.S. LEXIS 1519, 10 A.L.R. 716 (1920).

State statutes which provide for substituted service against nonresidents and foreign corporations will support judgments in personam which are entitled to full faith and credit providing there exist certain minimum contacts within the territory of the forum which are of such a character that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice. Schutt v. Commerical Travelers Mut. Acci. Asso., 229 F.2d 158, 1956 U.S. App. LEXIS 3553 (2d Cir. N.Y. 1956), cert. denied, Commercial Travelers Mut. Acci. Asso. v. Schutt, 351 U.S. 940, 76 S. Ct. 836, 100 L. Ed. 1466, 1956 U.S. LEXIS 940 (1956).

Judgment against foreign insurance company doing business in Tennessee based on service on commissioner of insurance as authorized by §§ 56-319 — 56-321 (now §§ 56-2-502 — 56-2-504, 56-3-105, 56-3-508, 56-3-509) and entered pro confesso was entitled to full faith and credit in foreign court. Schutt v. Commerical Travelers Mut. Acci. Asso., 229 F.2d 158, 1956 U.S. App. LEXIS 3553 (2d Cir. N.Y. 1956), cert. denied, Commercial Travelers Mut. Acci. Asso. v. Schutt, 351 U.S. 940, 76 S. Ct. 836, 100 L. Ed. 1466, 1956 U.S. LEXIS 940 (1956).

The application of the doctrine of forum non conveniens so as to refuse jurisdiction in an action brought by a citizen of another state will not violate U.S. Const. art. 4 if jurisdiction would have also been refused if plaintiff had been a citizen of the forum state. Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767, 1968 Tenn. LEXIS 524 (1968).

The entire record of proceedings in another state which had been properly authenticated pursuant to former Tenn. R. Civ. P. 44 (see now Tenn. R. Evid. 902) must be given full faith and credit. In re Riggs, 612 S.W.2d 461, 1980 Tenn. App. LEXIS 410 (Tenn. Ct. App. 1980), cert. denied, Riggs v. Terrazas, 450 U.S. 921, 101 S. Ct. 1370, 67 L. Ed. 2d 349, 1981 U.S. LEXIS 876 (1981).

A judgment is entitled to full faith and credit, even as to questions of jurisdiction, when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment. Harris v. Poole, 688 S.W.2d 78, 1984 Tenn. App. LEXIS 3445 (Tenn. Ct. App. 1984).

When conflicting judgments are entered in two states, each of which would otherwise be entitled to full faith and credit in the federal court, it is the second judgment which must control. First Tenn. Bank v. Smith, 766 F.2d 255, 1985 U.S. App. LEXIS 20109 (6th Cir. 1985).

4. —Application to Federal Courts.

Congress has the power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States. Embry v. Palmer, 107 U.S. 3, 2 S. Ct. 25, 27 L. Ed. 346, 1882 U.S. LEXIS 1197 (1883).

Judgments rendered by federal courts when administering state laws must be given full faith and credit in every state. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S. Ct. 641, 56 L. Ed. 1009, 1912 U.S. LEXIS 2074 (1912).

The full faith and credit clause of U.S. Const. art. 4, § 1 does not apply to a judgment rendered by a federal district court in one state, as to a federal district court in another state. Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 51 S. Ct. 517, 75 L. Ed. 1244, 1931 U.S. LEXIS 163 (1931).

A federal court is bound equally with the courts of the state in which it sits to observe the command of the full faith and credit clause. Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 52 S. Ct. 571, 76 L. Ed. 1026, 1932 U.S. LEXIS 599, 82 A.L.R. 696 (1932), overruled in part, Crider v. Zurich Ins. Co., 13 L. Ed. 2d 641, 85 S. Ct. 769, 380 U.S. 39, 1965 U.S. LEXIS 1731 (1965).

The full faith and credit clause, together with the legislation pursuant thereto, applies to judicial proceedings in a state court drawn in question in an independent proceeding in the federal courts. American Sur. Co. v. Baldwin, 287 U.S. 156, 53 S. Ct. 98, 77 L. Ed. 231, 1932 U.S. LEXIS 11, 86 A.L.R. 298 (1932).

A prior, unreviewed determination of a state administrative agency need not be given preclusive effect in a subsequent federal civil rights action. Elliott v. University of Tennessee, 766 F.2d 982, 1985 U.S. App. LEXIS 20422 (6th Cir. Tenn. 1985), aff'd in part, rev'd in part, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635, 1986 U.S. LEXIS 142 (1986).

5. —Effect in State of Rendition.

Judgments of state courts have the same credit and validity in every other court in the United States which they have in the state where rendered. Hampton v. M'Connel, 16 U.S. 234, 4 L. Ed. 378, 1818 U.S. LEXIS 361 (1818); Roche v. McDonald, 275 U.S. 449, 48 S. Ct. 142, 72 L. Ed. 365, 1928 U.S. LEXIS 47, 53 A.L.R. 1141 (1928).

Judgments of other states enjoy, not the right of priority or privilege of lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in the character of foreign judgments. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 1890 U.S. LEXIS 1895 (1890).

New York judgment was entitled to same effect in Tennessee as given it by the courts of New York. Graybar Electric Co. v. New Amsterdam Casualty Co., 186 Tenn. 446, 211 S.W.2d 903, 1948 Tenn. LEXIS 567 (1948).

Dismissal of plaintiff's suit in New York against defendant by court of appeals of New York on the merits barred suit in Tennessee between the same parties on the same subject matter, since the New York judgment would bar a subsequent proceeding in New York. Graybar Electric Co. v. New Amsterdam Casualty Co., 186 Tenn. 446, 211 S.W.2d 903, 1948 Tenn. LEXIS 567 (1948).

Enrollment of the Mississippi judgment that the lien held by the bank had priority over the business's possessory lien in the vehicle was affirmed because the appellate court disagreed with the business's assertion that Tennessee law concerning priority should apply and its Tennessee common law possessory lien should retain superiority against the bank's Mississippi judgment, when Tennessee law concerning the priority of possessory liens did not constitute an “age old rule” that had seldom been questioned, but rather, Tennessee case law showed that this area of the law had undergone many changes over the course of the last several decades and had, at times, granted prior lien holders priority over holders of liens of possession. Trustmark Nat'l Bank v. Miller, 209 S.W.3d 54, 2006 Tenn. App. LEXIS 223 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 981 (Tenn. Oct. 9, 2006).

In a lessor's action to recover unpaid rent, the full faith and credit clause required the court to apply the doctrine of res judicata, as the state of New Hampshire would when the lessor had unsuccessfully sued the same lessee under the same lease in a New Hampshire court; because the New Hampshire default judgment against the lessor for the lessor's failure to comply with the superior court discovery rules constituted a judgment on the merits barring a second suit alleging the same cause of action by the doctrine of res judicata, the lessor's Tennessee action against the same lessee under the same lease was barred by res judicata. Mitrano v. Houser, 240 S.W.3d 854, 2007 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 16, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 854 (Tenn. Sept. 17, 2007).

6. —Judgments in Foreign States.

The full faith and credit clause of the constitution does not extend to judgments of foreign states or nations unless the same is extended by treaty. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185, 32 S. Ct. 309, 56 L. Ed. 398, 1912 U.S. LEXIS 2224 (1912).

The full faith and credit clause applies only to states and territories of the United States and not to foreign countries. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

The only way another state's judgment may be collaterally attacked is if the court lacked subject matter jurisdiction over the case, personal jurisdiction over the parties or jurisdiction to render the particular judgment given, or unless the judgment was the product of extrinsic fraud. Even if the judgment is wrong and could be reversed on appeal or set aside on direct attack, it is not subject to collateral attack. Hospital Underwriting Group v. Summit Health, 63 F.3d 486, 1995 FED App. 0246P, 1995 FED App. 246P, 1995 U.S. App. LEXIS 24308 (6th Cir. Tenn. 1995).

Full faith and credit clause required that the doctrine of res judicata be applied in one state to a judgment rendered in another state to the same extent that it applied in the state of its rendition; the attorney's appeal in Tennessee was barred under res judicata where the Mississippi supreme court had considered and ruled upon the issue of personal jurisdiction and sufficient service of process. First State Bank v. Wyssbrod, 124 S.W.3d 566, 2003 Tenn. App. LEXIS 511 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1285 (Tenn. 2003).

7. —Defenses to Actions on Judgments.

8. — —Lack of Jurisdiction.

The jurisdiction of the court rendering a judgment may be inquired into when such judgment is sought to be enforced in another state. Thompson v. Whitman, 85 U.S. 457, 21 L. Ed. 897, 1873 U.S. LEXIS 1320 (1873); Thormann v. Frame, 176 U.S. 350, 20 S. Ct. 446, 44 L. Ed. 500, 1900 U.S. LEXIS 1742 (1900); Dunn v. Dilks, 31 Ind. App. 673, 68 N.E. 1035, 1903 Ind. App. LEXIS 193 (1903).

The courts of a state will not give effect to a judgment of another state unless it affirmatively appears by the record that the court had potential jurisdiction over the person of the defendant, as, where the defendant is a foreign corporation, that it was doing business in the state. Henning v. Planters' Ins. Co., 28 F. 440, 1886 U.S. App. LEXIS 1828 (C.C.W.D. Tenn. 1886).

A judgment in a state court having jurisdiction over the parties and the subject matter is binding in another state between the same parties in an action having the same issues and subject matter. Carpenter v. Strange, 141 U.S. 87, 11 S. Ct. 960, 35 L. Ed. 640, 1891 U.S. LEXIS 2501 (U.S. May 25, 1891).

Judgments rendered by the courts of states without having jurisdiction are not entitled to full faith and credit in the courts of other states. Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 27 S. Ct. 236, 51 L. Ed. 345, 1907 U.S. LEXIS 1525 (1907); Wetmore v. Karrick, 205 U.S. 141, 27 S. Ct. 434, 51 L. Ed. 745, 1907 U.S. LEXIS 1441 (1907).

When the judgment of a state court is sought to be given force and effect in another state, the courts of the latter state may inquire as to the jurisdiction of the court rendering the judgment, although the record may recite the necessary jurisdictional facts. Brown v. Fletcher's Estate, 210 U.S. 82, 28 S. Ct. 702, 52 L. Ed. 966, 1908 U.S. LEXIS 1496 (1908).

If a state court has jurisdiction to render a personal judgment, such judgment is enforceable in another state, although no action could have been maintained in the latter state on the cause of action upon which the judgment was rendered. Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (1908).

Want of power of the court making it to enforce a decree does not affect its validity, and, if the court had jurisdiction at the inception of the case, courts of other states must give it full faith and credit. Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S. Ct. 550, 57 L. Ed. 867, 1913 U.S. LEXIS 2378 (1913).

A judgment of a sister state against a nonresident is not entitled to recognition where jurisdiction was not acquired. Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S. Ct. 152, 61 L. Ed. 386, 1917 U.S. LEXIS 2201 (1917).

A judgment is entitled to full faith and credit even as to questions of jurisdiction where inquiry by the court in the second state discloses that those questions were fairly litigated and finally decided in the court which rendered the original judgment. Abernathy v. Chambers, 482 S.W.2d 129, 1972 Tenn. LEXIS 351 (Tenn. 1972).

A judgment of a court of another state, if void for lack of jurisdiction, is not entitled to full faith and credit. Southern R. Co. v. Williams, 141 Tenn. 46, 206 S.W. 186, 1918 Tenn. LEXIS 66 (1918).

Although final judgments entered by courts of other states are ordinarily conclusive, U.S. Const. art. 4, § 1 does not compel other states to grant these judgments full faith and credit when it is shown that the court entering the judgment did not have personal jurisdiction over the party against whom the judgment is sought to be enforced. Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 1984 Tenn. App. LEXIS 3449 (Tenn. Ct. App. 1984).

While foreign judgments are ordinarily entitled to full faith and credit in Tennessee's courts, they are subject to the same defenses and may be vacated or reopened on the same grounds and procedures used to vacate or reopen Tennessee judgments. Remington Invs. v. Obenauf, 1 S.W.3d 666, 1999 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1999).

9. — — —Personal Service Requirement.

Personal judgments cannot be rendered against nonresidents upon notice by publication alone. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, 1877 U.S. LEXIS 2227 (1878).

If, under a power of attorney given to confess a judgment, a judgment can be confessed only in favor of a certain person, and judgment is confessed in favor of another person, the validity of such judgment may be disputed in another state. National Exch. Bank v. Wiley, 195 U.S. 257, 25 S. Ct. 70, 49 L. Ed. 184, 1904 U.S. LEXIS 717 (1904).

Judgment taken against a person induced to come into a state is binding in the state of the residence of such person. Jaster v. Currie, 198 U.S. 144, 25 S. Ct. 614, 49 L. Ed. 988, 1905 U.S. LEXIS 1146 (1905).

Judgments rendered in a state by consent of the parties must be recognized in other states. Harding v. Harding, 198 U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066, 1905 U.S. LEXIS 1107 (1905).

The courts of one state are not required to give full faith and credit to a judgment rendered against a foreign corporation by default in another state on service of process upon an agent appointed to accept service after the corporation had withdrawn from the state and ceased to do business therein and had revoked the authority of the agent to accept service of process. Hunter v. Mutual Reserve Life Ins. Co., 218 U.S. 573, 31 S. Ct. 127, 54 L. Ed. 1155, 1910 U.S. LEXIS 2052 (1910).

An executor who has removed from the jurisdiction is bound by a personal judgment for devastavit rendered in the administration proceedings upon constructive service by the probate court appointing him, in favor of an administrator de bonis non, if the local law permits such practice, since, if a judicial proceeding is begun with jurisdiction over the person, it is within the power of the state to bind him by every subsequent order in the cause. Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S. Ct. 550, 57 L. Ed. 867, 1913 U.S. LEXIS 2378 (1913).

A judgment in personam, rendered without personal service within the jurisdiction, or an entry of appearance is not entitled to full faith and credit in other states. Flexner v. Farson, 248 U.S. 289, 39 S. Ct. 97, 63 L. Ed. 250, 1919 U.S. LEXIS 2310 (1919).

Where suit was filed in Florida against defendant, a resident of Tennessee, as executor of estate, and attorneys for defendant appeared only as counsel for defendant in a representative capacity, a personal judgment against defendant by Florida court was not entitled to due faith and credit in proceeding on judgment in Tennessee. Baskin v. Montedonico, 26 F. Supp. 894, 1939 U.S. Dist. LEXIS 3229 (W.D. Tenn. 1939), aff'd, 115 F.2d 837, 1940 U.S. App. LEXIS 3003 (6th Cir. Tenn. 1940).

10. — —Fraud or Mistake.

The full faith and credit clause does not prevent inquiring into the question of whether a judgment is founded on, and impeachable for, a manifest fraud. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 1890 U.S. LEXIS 1895 (1890).

When a state court has jurisdiction over the subject matter of the action, and acquires jurisdiction over the parties, irregularities in the subsequent proceedings cannot be set up to defeat the enforcement of a decree or judgment rendered in such cause when an action to enforce the same is brought in another state. Laing v. Rigney, 160 U.S. 531, 16 S. Ct. 366, 40 L. Ed. 525, 1896 U.S. LEXIS 2118 (1896).

A judgment obtained upon perjured testimony is entitled to full faith and credit until set aside by the court of the state in which the judgment was rendered. Allard v. La Plain, 147 Wash. 497, 266 P. 688, 1928 Wash. LEXIS 597 (1928).

A judgment of a court of general jurisdiction of another state which had jurisdiction of the judgment defendant and of the subject matter, though voidable for plaintiff's fraud in representing to the defendant that the action would be dismissed and that it would be unnecessary for the defendant to appear thereto, and thereafter taking a judgment by default, was not void nor subject to collateral attack; the defendant's remedy being by proper proceeding in the court which rendered it. Burley Tobacco Growers Coop. Ass'n v. Roeder, 88 Ind. App. 649, 165 N.E. 330, 1929 Ind. App. LEXIS 29 (1929).

11. — —Public Policy.

If rights are asserted in a state under a judgment rendered in another state, the court in which such rights are asserted may inquire into the validity of such judgment; and a state may provide by law that a decree of a divorce between parties who are residents of such state, rendered in another state in violation of such law, shall be void in the state where such parties reside, and the courts of such state may refuse to recognize such decree. Andrews v. Andrews, 188 U.S. 14, 23 S. Ct. 237, 47 L. Ed. 366, 1903 U.S. LEXIS 1266 (1903); German Sav. & Loan Soc'y v. Dormitzer, 192 U.S. 125, 24 S. Ct. 221, 48 L. Ed. 373, 1904 U.S. LEXIS 1039 (1904).

The courts of a state may refuse to enforce a judgment of a court of another state when to permit a recovery would be against the public policy of the former state. Finney v. Guy, 189 U.S. 335, 23 S. Ct. 558, 47 L. Ed. 839, 1903 U.S. LEXIS 1357 (1903). But see Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (1908).

Collective bargaining contract rider, which would exclude nonunion employees from employment in Tennessee on shipments out of Kentucky passing through Tennessee, violated the Tennessee Open Shop Law and the fixed public policy of Tennessee, and thus was unenforceable in Tennessee even though legal and enforceable in Kentucky where it was added to the contract. Martin v. Dealers Transport Co., 48 Tenn. App. 1, 342 S.W.2d 245, 1960 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1960).

U.S. Const. art. 4, § 1 does not require that full faith and credit be given to foreign judgments when to do so would violate the strong public policy of the state in which the judgment is sought to be enforced. Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 1984 Tenn. App. LEXIS 3449 (Tenn. Ct. App. 1984).

12. — —Statute of Limitations.

A state may prescribe a period of limitation for suits on foreign judgments, shorter than that prescribed in the state in which the judgment was rendered. M'Elmoyle v. Cohen, 38 U.S. 312, 10 L. Ed. 177, 1839 U.S. LEXIS 439 (1839).

The statute providing that judgments cannot be enforced which are obtained in other states on causes of action barred by the statute of limitations of the state enacting the statute is invalid. Christmas v. Russell, 72 U.S. 290, 18 L. Ed. 475, 1866 U.S. LEXIS 938 (1866).

The limitation of actions is governed by the lex fori, and is controlled by the legislation of the state in which the action is brought, as construed by the highest court of that state, even if the legislative act or the judicial construction differs from that prevailing in other jurisdictions. Great W. Tel. Co. v. Purdy, 162 U.S. 329, 16 S. Ct. 810, 40 L. Ed. 986, 1896 U.S. LEXIS 2208 (1896).

13. —Parties to Judgment.

If a party to an action dies, and the suit is revived against his personal representative, a judgment rendered in the suit will not be conclusive as to interested parties in another state. Brown v. Fletcher's Estate, 210 U.S. 82, 28 S. Ct. 702, 52 L. Ed. 966, 1908 U.S. LEXIS 1496 (1908).

The constitutional provision requiring full faith and credit to be given by each state to judgments rendered in other states does not apply to persons who are not parties to such judgments. Bagley v. General Fire Extinguisher Co., 212 U.S. 477, 29 S. Ct. 341, 53 L. Ed. 605, 1909 U.S. LEXIS 1831 (1909).

Full faith and credit is not denied a judgment of a Washington court in an action brought by the administratrix appointed under the laws of Tennessee, by the bringing of a suit by the mother in Idaho as an heir for the killing of her son, the mother not being a party to the suit that was brought by the administratrix for such death. Spokane & I.E.R.R. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, 1915 U.S. LEXIS 1358 (1915).

A decree of a court of the home state of a life insurance company issuing benefit certificates is denied the full faith and credit to which it is entitled under U.S. Const. art. 4, § 1, where another state court excludes it from evidence in a suit brought by a beneficiary, not a party to the former suit, where the question was as to the right to make advances from its mortuary fund to pay death claims, and make assessments to replenish such fund. Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 S. Ct. 692, 59 L. Ed. 1165, 1915 U.S. LEXIS 1381 (1915).

A judgment of a state court against an express company is not denied full faith and credit by the refusal of another state to treat such judgment as a bar to the right of the consignor to hold the express company liable for the value of C. O. D. consigned goods, where such refusal was based upon the express company's failure to prove that it gave consignor prompt notice of pendency of such replevin suit. Wells Fargo & Co. Express v. Ford, 238 U.S. 503, 35 S. Ct. 864, 59 L. Ed. 1431, 1915 U.S. LEXIS 1582 (1915).

The full faith and credit clause does not make judgments binding on those who were neither party nor privy to the proceedings in which they were rendered. Blodgett v. Silberman, 277 U.S. 1, 48 S. Ct. 410, 72 L. Ed. 749, 1928 U.S. LEXIS 670 (1928).

14. —Particular Proceedings.

15. — —Adoption.

An adoption decree of another state was not entitled to full faith and credit when no notice of the proceedings had been given to the putative father who had gone to great lengths to exert full responsibility for his child. In re Riggs, 612 S.W.2d 461, 1980 Tenn. App. LEXIS 410 (Tenn. Ct. App. 1980), cert. denied, Riggs v. Terrazas, 450 U.S. 921, 101 S. Ct. 1370, 67 L. Ed. 2d 349, 1981 U.S. LEXIS 876 (1981).

16. — — —Alienation of Affections.

Even though Tennessee has abolished actions for alienation of affection, the judgment of a sister state based upon that cause of action was entitled to full faith and credit. Francis v. Francis, 945 S.W.2d 752, 1996 Tenn. App. LEXIS 780 (Tenn. Ct. App. 1996), appeal denied, — S.W.2d —, 1997 Tenn. LEXIS 240 (Tenn. May 5, 1997).

17. — —Attachment and Garnishment.

Garnishment of wages outside of state where debtor resides, right of garnishee to protection against subsequent proceedings by debtor. Chicago, Rock Island & Pac. Ry. v. Sturm, 174 U.S. 710, 19 S. Ct. 797, 43 L. Ed. 1144, 1899 U.S. LEXIS 1529 (1899).

Attachment and garnishment, when judgments rendered in a state, must be recognized in other states. Harris v. Balk, 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023, 1905 U.S. LEXIS 1122 (1905); Louisville & N.R.R. v. Deer, 200 U.S. 176, 26 S. Ct. 207, 50 L. Ed. 426, 1906 U.S. LEXIS 1465 (1906); Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905, 1910 U.S. LEXIS 2000 (1910).

Jurisdiction in garnishment of a debt due from a railway company to a nonresident employee may be acquired without notice to or service of process upon him (other than an extrajudicial notice given by the garnishee), so as to make the judgment in the garnishment proceedings valid as to him, and entitle it to full faith and credit in the state where he resides. B & O.R.R. v. Hostetter, 240 U.S. 620, 36 S. Ct. 475, 60 L. Ed. 829, 1916 U.S. LEXIS 1491 (1916).

Former Code 1932, § 9406 which permitted creditor of a nonresident debtor to attach a resident debtor who owed a nonresident debtor of the principal debtor was a violation of due process and a decree resting on an application of such statute would not be entitled to full faith and credit. Dickson v. Simpson, 172 Tenn. 680, 113 S.W.2d 1190, 1937 Tenn. LEXIS 113, 116 A.L.R. 380 (1937).

18. — —Corporations.

Where, under the laws of a state, an action can be maintained against a stockholder after the recovery of an unsatisfied judgment against the corporation and a judgment against such corporation is recovered in such state, the courts of another state are bound to entertain an action against a stockholder of such corporation, and the judgment is conclusive against the corporation as well as binding on the stockholder. Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 20 S. Ct. 506, 44 L. Ed. 619, 1900 U.S. LEXIS 1761 (1900).

A curative statute allowing foreign corporations who had not complied with the registration laws to sue on complying therewith, on contracts made before registration, is valid, and a judgment enforcing such a contract in a state court after the enactment of the curative statute does not deny full faith and credit to a judgment of a federal court denying relief solely on the ground of noncompliance with the registration law. West Side Belt R.R. v. Pittsburgh Constr. Co., 219 U.S. 92, 31 S. Ct. 196, 55 L. Ed. 107, 1911 U.S. LEXIS 1621 (1911).

The legislature of another state has no authority to enact a statute which deprives courts of this state of their jurisdiction to administer upon local assets of a foreign corporation domiciled in such other state, in accordance with the law of the forum. Davis v. Amra Grotto M.O.V.P.E.R., Inc., 170 Tenn. 19, 91 S.W.2d 294, 1935 Tenn. LEXIS 102, 106 A.L.R. 1511 (1935).

New York judgment obtained pursuant to arbitration agreement between New York corporation and Tennessee corporation was valid and entitled to due faith and credit. Hirsch Fabrics Corp. v. Southern Athletic Co., 98 F. Supp. 436, 1951 U.S. Dist. LEXIS 2243 (E.D. Tenn. 1951).

19. — —Insurance.

The full faith and credit due from the New York courts under U.S. Const. art. 4, § 1 to a Massachusetts judgment, which holds that a mutual benefit society incorporated in that state has the power under its charter and bylaws to increase its assessment rates, requires that the courts of the former state, when called upon to consider the validity of such increase as to members of a New York subordinate council, recognize the controlling effect of the Massachusetts law, as established by that court. Supreme Council of Royal Arcanum v. Green, 237 U.S. 531, 35 S. Ct. 724, 59 L. Ed. 1089, 1915 U.S. LEXIS 1362 (1915).

In an action against a nonresident beneficiary of a life insurance policy who has possession of the policy, with notes by publication, the court has no jurisdiction over the person or the res, and any judgment would not be entitled to full faith and credit hereunder and would not bar beneficiary's rights under the policy. Edwards v. New York Life Ins. Co., 173 Tenn. 102, 114 S.W.2d 808, 1938 Tenn. LEXIS 2 (1938).

In suit by beneficiary to recover on certificate of fraternal insurance issued by organization incorporated in Nebraska based on provision authorizing issuance of life membership certificate after payment of dues for period of twenty-five years, the court under due faith and credit clause of United States constitution was required to recognize decision by Nebraska court holding life membership provision ultra vires and void. Sovereign Camp, W.O.W. v. White, 183 Tenn. 622, 194 S.W.2d 471, 1946 Tenn. LEXIS 246 (1946).

20. — —Marriage and Divorce.

If a court having jurisdiction determines that no marriage exists between parties, the judgment of such court must be respected in other states. Everett v. Everett, 215 U.S. 203, 30 S. Ct. 70, 54 L. Ed. 158, 1909 U.S. LEXIS 1748 (1909).

The courts of Tennessee may enforce by contempt or other equitable process decrees of foreign courts awarding custody of children and/or child support. Strube v. Strube, 53 Tenn. App. 88, 379 S.W.2d 44, 1963 Tenn. App. LEXIS 131 (Tenn. Ct. App. 1963).

Where Georgia court awarded custody of children to wife in divorce decree and ordered child support payments by husband and husband wrongfully deprived wife, subsequently domiciled in Florida, of custody and removed himself and children to Tennessee, Tennessee court could hear issue of custody of children insofar as it related to the welfare of the children but could properly limit the issues to question as to whether there had been any agreement to change custody and whether conduct of wife showed she was so unfit as to shock the conscience of the court to enforce the Georgia decree. Strube v. Strube, 53 Tenn. App. 88, 379 S.W.2d 44, 1963 Tenn. App. LEXIS 131 (Tenn. Ct. App. 1963).

Where husband who resided in South Carolina brought suit in South Carolina for divorce and wife who at time was residing in Tennessee appeared specially in the South Carolina action to contest jurisdiction alleging she was resident of Tennessee, the determination of the South Carolina court as to residency on the date of such determination was res judicata in Tennessee, but where wife charged a specific act of cruel and unusual treatment occurring after such date in Tennessee, wife could bring divorce action in Tennessee notwithstanding pendency of husband's divorce action in South Carolina. Atchley v. Atchley, 585 S.W.2d 614, 1978 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1978).

The principle of comity has long been applied in this state to foreign divorce decrees. Herrington v. Boatright, 633 S.W.2d 781, 1982 Tenn. App. LEXIS 480 (Tenn. Ct. App. 1982).

Tennessee was home state in situation where wife sued for divorce, child support and alimony in Tennessee, received temporary decree not to her liking, moved to Texas, sued for divorce, child support and alimony and received decree to her liking before Tennessee proceedings became final, and Texas courts were without subject matter jurisdiction and should have given the Tennessee temporary decree full faith and credit. Salisbury v. Salisbury, 657 S.W.2d 761, 1983 Tenn. App. LEXIS 698 (Tenn. Ct. App. 1983).

21. — — —Domicile, Residence and Service.

The courts of the state which is the domicile of the husband, and the only matrimonial domicile, have jurisdiction to render a decree of divorce in his favor, which decree is entitled to full faith and credit in the District of Columbia. Thompson v. Thompson, 226 U.S. 551, 33 S. Ct. 129, 57 L. Ed. 347, 1913 U.S. LEXIS 2263 (1913), overruled in part, Vanderbilt v. Vanderbilt, 77 S. Ct. 1360, 354 U.S. 416, 1 L. Ed. 2d 1456, 1957 U.S. LEXIS 584 (1957).

A divorce decree obtained in a state after acquisition of simulated residence and without actual service on the other spouse is not binding outside such state. Friedenwald v. Friedenwald, 16 F.2d 509, 1926 U.S. App. LEXIS 3892 (D.C. Cir. 1926), cert. denied, 273 U.S. 763, 47 S. Ct. 476, 71 L. Ed. 879, 1927 U.S. LEXIS 899 (1927).

A bona fide domicile in the divorce forum is essential to confer jurisdiction of the subject matter, and one state may decline to recognize a decree of divorce rendered in the court of another where, contrary to the findings of the latter in rendering the decree, the courts of the former find that the plaintiff in the divorce suit had not acquired such a domicile in the divorce forum, at least where that issue had not been litigated in a truly adversary proceeding. Hamm v. Hamm, 30 Tenn. App. 122, 204 S.W.2d 113, 1947 Tenn. App. LEXIS 125, 175 A.L.R. 523 (Tenn. Ct. App. 1947).

A divorce decree, otherwise valid, obtained in one state against a nonresident defendant without appearance and upon constructive service of process only, is entitled to extraterritorial recognition under the full faith and credit clause. Hamm v. Hamm, 30 Tenn. App. 122, 204 S.W.2d 113, 1947 Tenn. App. LEXIS 125, 175 A.L.R. 523 (Tenn. Ct. App. 1947).

Where at time divorce proceedings were instituted in Ohio court and at time decree was entered children of the parties were domiciled in Tennessee and where wife was given no notice of the hearing, the Ohio decree was not entitled to full faith and credit as to custody of the children and did not bar subsequent suit by wife in Tennessee for custody. Burden v. Burden, 44 Tenn. App. 312, 313 S.W.2d 566, 1957 Tenn. App. LEXIS 158 (Tenn. Ct. App. 1957).

Tennessee courts were required to give full faith and credit to divorce decree entered in Texas, the marital domicile, upon constructive service with a copy of the bill being served on defendant in Tennessee in accordance with Texas statute. Burton v. Burton, 52 Tenn. App. 484, 376 S.W.2d 504, 1963 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1963).

22. — — —Alimony and Property.

Judgments for alimony are protected by the constitutional provision requiring full faith and credit to be given to judgments of other states. Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905, 1910 U.S. LEXIS 2000 (1910).

A foreign judgment for alimony can be enforced by remedy of sequestration or attachment for contempt providing the foreign judgment is enforceable by same equitable remedies in state where judgment was originally entered. Thones v. Thones, 185 Tenn. 124, 203 S.W.2d 597, 1947 Tenn. LEXIS 311 (1947).

Decree of divorce in favor of husband rendered in Michigan where parties were residents was entitled to full faith and credit, but that part of decree vesting title in husband of property in Tennessee on condition of payment to state of Michigan in the sum of $250.90 in lieu of dower of wife who was confined to mental institution in Michigan should wife fail to sign a quit claim deed was not entitled to full faith and credit, since decree was a fraud on its face as effect was to require wife to pay debt to state of Michigan for her care for which husband alone was liable. Clouse v. Clouse, 185 Tenn. 666, 207 S.W.2d 576, 1948 Tenn. LEXIS 506 (1948).

Refusal of state supreme court to give credit to judgment of sister state for alimony because it was subject to modification is a ruling upon a federal right, and the sufficiency of the grounds for denial is for the United States supreme court to decide, and while the United States supreme court will give deference to the opinion of the court of the forum in determining the applicable law of the state which rendered the judgment sought to be enforced, the view of such latter court is not conclusive, and where prima facie validity of judgment rendered in North Carolina was not overcome, the supreme court of Tennessee was required to give full faith and credit to North Carolina decree. Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82, 1944 U.S. LEXIS 45, 157 A.L.R. 163 (1944).

Public policy of Tennessee limits the right of a wife to recover alimony from a husband who has obtained a divorce on constructive service in another state to cases where Tennessee is or was the matrimonial domicile. Burton v. Burton, 52 Tenn. App. 484, 376 S.W.2d 504, 1963 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1963).

Where Texas was the matrimonial domicile, wife could not maintain suit in Tennessee for alimony after divorce decree had been entered in Texas upon constructive service. Burton v. Burton, 52 Tenn. App. 484, 376 S.W.2d 504, 1963 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1963).

23. — —Probate Proceedings.

Probate proceedings in a court of a foreign state are judicial proceedings to the record of which full faith and credit is to be given when authenticated conformably to the federal act. Jacobs v. Willis' Heirs, 147 Tenn. 539, 249 S.W. 815, 1922 Tenn. LEXIS 64 (1923).

Where the court in one state has jurisdiction to appoint an administrator, his judgment in the exercise of such jurisdiction is conclusive in another state. Louisville & N.R.R. v. Jones' Adm'r, 215 Ky. 774, 286 S.W. 1071, 1926 Ky. LEXIS 801, 53 A.L.R. 1255 (1926).

24. — — —Claims and Creditors.

Tennessee creditor of a testatrix who died domiciled in another state leaving assets in Tennessee was not obligated to file a claim in the courts of such other state in order to subject the Tennessee assets to such claim, and where such creditor did not subject himself to the courts of such other state and was not a party to the probate proceedings there, the probate proceedings in such state were not res judicata as to the right of such creditor to maintain a suit in Tennessee against an administrator appointed under the provisions of § 30-103 (now § 30-1-103) and were not entitled to full faith and credit as to such issue. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

25. — — —Descent and Alienation.

The descent and alienation of real estate is governed by the law of the state of its location, and courts of other states cannot render judgments or decrees which affect the title to such lands, and courts are not required to give full faith and credit to judgments affecting the title to lands which are rendered by courts of other states. Fall v. Eastin, 215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 1909 U.S. LEXIS 1726 (1909); Olmsted v. Olmsted, 216 U.S. 386, 30 S. Ct. 292, 54 L. Ed. 530, 1910 U.S. LEXIS 1904 (1910).

26. — — —Wills.

A will of lands duly recorded in one state, so as to be evidence in the courts of that state, is rendered evidence thereby in the courts of every other state, where the record on its face shows the requisite solemnities of the state where the land lies. M'Dowell v. Peyton, 23 U.S. 454, 6 L. Ed. 364, 1825 U.S. LEXIS 239 (1825).

When a state court having jurisdiction admits a will to probate, and proceeds under the law to administer, settle, and distribute the estate of the testator, the proceedings of such court which come within its jurisdiction are conclusive upon the courts of other states. Tilt v. Kelsey, 207 U.S. 43, 28 S. Ct. 1, 52 L. Ed. 95, 1907 U.S. LEXIS 1199 (1907).

The decree of a Texas court admitting a will to probate is not denied full faith and credit by a judgment of a Louisiana court annulling the will on the grounds that the testator died domiciled in Louisiana. Burbank v. Ernst, 232 U.S. 162, 34 S. Ct. 299, 58 L. Ed. 551, 1914 U.S. LEXIS 1404 (1914).

Although the full faith and credit clause applies only to states and territories of the United States, yet under §§ 32-501 — 32-505 (now §§ 32-5-101 — 32-5-105) a will duly probated in a foreign country may be probated in this state, the state of the testator's domicile, in which the deceased left property. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

Where jurisdiction of Mississippi court to probate will in solemn form was fully litigated in that court, Tennessee courts were required to give full faith and credit to Mississippi decree in subsequent Tennessee suit to remove cloud from title of realty involved in such probate. Abernathy v. Chambers, 482 S.W.2d 129, 1972 Tenn. LEXIS 351 (Tenn. 1972).

27. — —Receivership.

A receiver appointed by a foreign court with title to property or claim has a right under the full faith and credit clause to maintain an action in a local court but such rule does not authorize bringing of suit to recover personal property by a chancery receiver who is merely authorized to sue and recover the property or its value by virtue of his appointment rather than by virtue of title vested by statute or actual assignment. De Laney Furniture Co. v. Magnavox Co. of Tennessee, 222 Tenn. 329, 435 S.W.2d 828, 1968 Tenn. LEXIS 511 (1968), overruled in part, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988).

28. — —Trusts.

Activity of the trustees, both in the collection and payment of money in Tennessee under the national bituminous coal wage agreement, constituted “minimum contact” to make the trust subject to substituted service of process under Tennessee statutes in suits by pension claimants and by coal producers seeking refund of moneys allegedly illegally collected by the trust. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

The 1963 statutory amendment to Code § 20-223 (now § 20-2-202) contemplated and was sufficient to accomplish the purpose of regulating the doing of business in Tennessee by nonresident trusts by providing for substituted personal service upon the trustees of the trust fund through the secretary of state, although it literally provided for service upon “nonresident trusts” rather than trustees. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

Under the national bituminous coal wage agreement, the trust fund had numerous beneficiaries in Tennessee, resorted to court action in Tennessee courts, maintained an area medical office in Knoxville, and sent representatives and auditors to visit applicants and check employers' records; and these facts satisfy the test of doing business in Tennessee within the “substituted service” statute. Rittenberry v. Lewis, 222 F. Supp. 717, 1963 U.S. Dist. LEXIS 7196 (E.D. Tenn. 1963), aff'd, 333 F.2d 573, 1964 U.S. App. LEXIS 4991 (6th Cir. Tenn. 1964).

29. — —Workers' Compensation Benefits.

The full faith and credit clause did not preclude suit in Tennessee for workers' compensation benefits under Tennessee law on ground that such benefits had been obtained in Virginia under Virginia law. True v. Amerail Corp., 584 S.W.2d 794, 1979 Tenn. LEXIS 475 (Tenn. 1979) (suit in Tennessee was barred on other grounds).

30. — —Child Custody.

The Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, governs how full faith and credit must be extended to child custody determinations. Salisbury v. Salisbury, 657 S.W.2d 761, 1983 Tenn. App. LEXIS 698 (Tenn. Ct. App. 1983).

NOTES TO DECISIONS

1. Clause 1.

2. —Construction.

The court will not attempt to define privileges and immunities, but will leave its meaning to be determined in each case upon a view of the particular rights asserted and denied therein. Conner v. Elliott, 59 U.S. 591, 15 L. Ed. 497, 1855 U.S. LEXIS 740 (1855); Ward v. Maryland, 79 U.S. 418, 20 L. Ed. 449, 1870 U.S. LEXIS 1211 (Dec. 11, 1871).

The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government. Butchers' Benevolent Ass'n v. Crescent City Live-Stock Landing & Slaughter-House Co., 83 U.S. 36, 21 L. Ed. 394, 1872 U.S. LEXIS 1139 (1872), superseded by statute as stated in, United States v. Ruiz, 961 F. Supp. 2d 1524, 1997 U.S. Dist. LEXIS 4935 (D. Tenn. 1997).

The constitution of the United States does not make the privileges and immunities enjoyed by the citizens of a state, under the constitution and laws of that state, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another state under its constitution and laws. McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867, 1894 U.S. LEXIS 2213 (1894).

Discrimination by the several states against citizens of other states in respect of the fundamental privileges of citizenship was intended to be prevented by the first paragraph of U.S. Const. art. 4, § 2.Maxwell v. Bugbee, 250 U.S. 525, 40 S. Ct. 2, 63 L. Ed. 1124, 1919 U.S. LEXIS 1772 (1919).

3. —Application.

No privileges are secured by U.S. Const. art. 4, § 2, cl. 1, except those that belong to citizenship. Rights attached by law to contracts by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties, are not “privileges of a citizen” within the meaning of the constitution. Conner v. Elliott, 59 U.S. 591, 15 L. Ed. 497, 1855 U.S. LEXIS 740 (1855).

U.S. Const. art. 4, § 2, like U.S. Const. amendment 14, is directed against state action only, and not against the acts of individuals. United States v. Wheeler, 254 U.S. 281, 41 S. Ct. 133, 65 L. Ed. 270, 1920 U.S. LEXIS 1159 (1920).

4. — —Corporations.

Corporations are not citizens within the meaning of the constitution, when it declares that the citizens of each state shall be entitled to the privileges and immunities of citizens in the several states. Paul v. Virginia, 75 U.S. 168, 19 L. Ed. 357, 1868 U.S. LEXIS 1092 (1868), overruled in part, United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440, 1944 U.S. LEXIS 1199, 1944 Trade Cas. (CCH) P57253 (1944), superseded by statute as stated in, City of Charleston v. Government Employees Ins. Co., 869 F. Supp. 378, 1994 U.S. Dist. LEXIS 17677 (D. Tenn. 1994), overruled, Legal Principles Defining the Scope of the Federal Antitrust Exemption for Insurance, 2005 U.S. Comp. Gen. LEXIS 43 (Comp. Gen. Mar. 4, 2005), overruled, Sun Life Assur. Co. of Can. v. Manna, 227 Ill. 2d 128, 879 N.E.2d 320, 2007 Ill. LEXIS 1699 (2007); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 8 S. Ct. 737, 31 L. Ed. 650, 1888 U.S. LEXIS 1926 (1888).

A business association of the kind known as “Massachusetts trusts” is not within the protection of U.S. Const. art. 4, § 2, cl. 1. Hemphill v. Orloff, 277 U.S. 537, 48 S. Ct. 577, 72 L. Ed. 978, 1928 U.S. LEXIS 696 (1928).

5. — —Foreign Corporations.

A state statute giving priority to citizens of Tennessee in the distribution of assets of a foreign corporation entering the state and becoming insolvent violates U.S. Const. art. 4, § 2 as to persons who are citizens of other states, but not as to corporations of other states, as a corporation is not a citizen. Blake v. McClung, 172 U.S. 239, 19 S. Ct. 165, 43 L. Ed. 432, 1898 U.S. LEXIS 1651 (1898).

Code of Tennessee granting priority of local creditors over foreign creditors in insolvency of a corporation is constitutional insofar as it applies to foreign corporation creditors, but is not constitutional insofar as it applies to natural persons located outside the state who are holding claims. Berger v. Kingsport Press, Inc., 89 F.2d 444, 1937 U.S. App. LEXIS 3494 (6th Cir. Tenn. 1937), cert. denied, Berger v. Kingsport Press, 302 U.S. 738, 58 S. Ct. 140, 82 L. Ed. 570, 1937 U.S. LEXIS 1242 (1937).

In view of U.S. Const. art. 4, § 2 providing that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” Acts 1929 (E. S.), ch. 13, § 4 (§ 48-907, see now § 48-25-101 et seq.), pertaining to the rights, liabilities of foreign corporations admitted to do business in this state, repealed Acts 1877, ch. 31, § 5 pertaining to the same subject matter. Crenshaw v. Texokola Pecan Shellers, Inc., 171 Tenn. 273, 102 S.W.2d 60, 1936 Tenn. LEXIS 90 (1937).

6. — —Employment.

New York Consol. Laws, ch. 31, § 14 is not violative of the United States constitution relating to privileges and immunities of the citizens, by providing that only citizens of the United States may be employed in public works by or for the state or a municipality, and that citizens of New York shall be given preference. Heim v. McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed. 206, 1915 U.S. LEXIS 1478 (1915).

U.S. Const. art. 4, § 2 does not apply to forbid government agencies from denying employment to a state attorney who graduated from a nonaccredited law school, since lawyers from other states with similar backgrounds were equally disqualified from consideration. Whittle v. United States, 7 F.3d 1259, 1993 U.S. App. LEXIS 27697 (6th Cir. 1993).

7. — —Intoxicating Liquors.

Fact that intoxicating liquors manufactured under the local option provisions of Acts 1937, ch. 193 could not be sold to people of Tennessee but could be sold to citizens of other states did not render such act unconstitutional as being class legislation and discriminatory. Clark v. State, 172 Tenn. 429, 113 S.W.2d 374, 1937 Tenn. LEXIS 92 (1938).

8. — —Property.

U.S. Const. art. 4, § 2, cl. 1 protects the right of a citizen of a state to acquire personal property and to take and hold real estate in another state. Ward v. Maryland, 79 U.S. 418, 20 L. Ed. 449, 1870 U.S. LEXIS 1211 (Dec. 11, 1871).

The citizens of a state are not invested by U.S. Const. art. 4, § 2, cl. 1 with any interest in the common property of the citizens of another state, and a state may prohibit the citizens of another state from planting oysters in its navigable streams. McCready v. Virginia, 94 U.S. 391, 24 L. Ed. 248, 1876 U.S. LEXIS 1875 (1876).

States cannot prohibit the citizens of other states from holding property within a state as trustees, the same as the citizens of the state may hold it. Roby v. Smith, 131 Ind. 342, 30 N.E. 1093, 1892 Ind. LEXIS 189, 31 Am. St. Rep. 439, 31 Am. St. Rep. 439, 15 L.R.A. 792 (1892).

The rights, privileges, and immunities secured by the federal constitution to the inhabitants of the several states do not include any rights in the property of the several states held in trust for their own inhabitants, such as title to game and fish not reduced to possession nor under restraint; so that state act prohibiting nonresidents from shell fishing for profit without a license is constitutional. State v. Ashman, 123 Tenn. 654, 135 S.W. 325, 1910 Tenn. LEXIS 34 (1910).

Where, under authority of § 6-1403 (now § 7-35-201), municipal authorities terminated the water service of a property owner who refused to connect to the municipal sewer, it was held that the property owner was not deprived of any of the privileges or immunities guaranteed him by U.S. Const. art. 4, and that he was not deprived of his property without procedural or substantive due process or denied equal protection of the laws under U.S. Const. amend. 14.Hodge v. Stout, 377 F. Supp. 131, 1974 U.S. Dist. LEXIS 9095 (E.D. Tenn. 1974).

9. — —Professions.

An act of a state for the licensing of insurance brokers, limited to such persons who are residents and have been licensed for at least two years by the insurance commissioner to represent citizens, is not in violation of U.S. Const. art. 4, § 2. La Tourette v. McMaster, 248 U.S. 465, 39 S. Ct. 160, 63 L. Ed. 362, 1919 U.S. LEXIS 2274 (1919).

10. — —Students.

By denying transferred student, who was handicapped, from participating in school athletics for 12-month period pursuant to established rule, school athletic association did not take retaliatory action against student, for his lawful resort to the courts to challenge rule under education of the Handicapped Act (20 U.S.C. § 1400 et seq.), in violation of his first amendment, due process and privilege and immunities rights under the federal constitution. Crocker v. Tennessee Secondary Sch. Athletic Ass'n, 980 F.2d 382, 1992 U.S. App. LEXIS 30163 (6th Cir. Tenn. 1992).

11. — —Taxation.

A state may impose a different rate of taxation upon a foreign corporation for the privilege of doing business than it applies to its own corporations upon the franchise which the state grants in creating them. Cheney Bros. Co. v. Massachusetts, 246 U.S. 147, 38 S. Ct. 295, 62 L. Ed. 632, 1918 U.S. LEXIS 1530 (1918).

A state tax on the transfer of property of a nonresident decedent held not in violation of the constitution. Maxwell v. Bugbee, 250 U.S. 525, 40 S. Ct. 2, 63 L. Ed. 1124, 1919 U.S. LEXIS 1772 (1919).

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states and are thus protected against discriminatory taxation, but they are not entitled to entire immunity from taxation. Shaffer v. Carter, 252 U.S. 37, 40 S. Ct. 221, 64 L. Ed. 445, 1920 U.S. LEXIS 1660 (1920).

Nonresidents are not denied their constitutional privileges or immunities, nor the equal protection of the laws, by a state tax imposed upon the net income derived by them from property owned within the state, and from any business, trade, or profession carried on within its borders, either on the theory that, since the tax is, as to citizens of the state, a purely personal tax, measured by their incomes, while, as applied to a nonresident, it is essentially a tax upon his property and business within the state to which the property and business of citizens and residents of the state are not subjected, there was a discrimination against the nonresident, or because the taxing statute permits residents to deduct from their gross income not only losses incurred within the state but also those sustained elsewhere, while nonresidents may deduct only those incurred within the state. Shaffer v. Carter, 252 U.S. 37, 40 S. Ct. 221, 64 L. Ed. 445, 1920 U.S. LEXIS 1660 (1920).

A taxing scheme of a state discriminating against all nonresidents necessarily includes those who are citizens of other states, and, if there be no reasonable ground for the diversity of treatment, it abridges the privileges and immunities to which such citizens are entitled. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40 S. Ct. 228, 64 L. Ed. 460, 1920 U.S. LEXIS 1661 (1920).

12. — — —Licenses and Privileges.

States cannot impose upon nonresident traders a tax that is not upon like conditions imposed upon citizens of the state. Ward v. Maryland, 79 U.S. 418, 20 L. Ed. 449, 1870 U.S. LEXIS 1211 (Dec. 11, 1871).

A statute imposing a license on a merchandise business is not violative of the constitutional protection against the abridgment of privileges or immunities because it excludes manufacturers. Armour & Co. v. Virginia, 246 U.S. 1, 38 S. Ct. 267, 62 L. Ed. 547, 1918 U.S. LEXIS 1515 (1918).

A state law which imposes a greater privilege tax on a person engaged in railroad construction and having his chief offices outside of the state than it imposes on one having his chief offices within the state amounts to discrimination against citizens of other states. Chalker v. Birmingham & N.W. Ry., 249 U.S. 522, 39 S. Ct. 366, 63 L. Ed. 748, 1919 U.S. LEXIS 2070 (1919).

A Tennessee statute imposing an annual license fee of $100 in each county upon any person engaged in railroad construction work, whose chief office is outside the state, and a similar fee of $25 for such person if his chief office is in the state, violates U.S. Const. art. 4, § 2, cl. 1, since in practical operation, it discriminates against the citizens of other states. Chalker v. Birmingham & N.W. Ry., 249 U.S. 522, 39 S. Ct. 366, 63 L. Ed. 748, 1919 U.S. LEXIS 2070 (1919).

13. — —Suits.

Tennessee act providing that right to attach against nonresident was restricted to resident plaintiffs of Tennessee did not violate privilege and immunity clause of federal constitution. Kincaid v. Francis, 3 Tenn. 48, 1812 Tenn. LEXIS 18 (1812).

The intention of U.S. Const. art. 4, § 2, cl. 1 is to confer on the citizens of the several states a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the like circumstances, and this includes the right to institute actions. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 1890 U.S. LEXIS 1895 (1890).

A statute of a state providing that an action for the death of a person caused by a wrongful act may be prosecuted only in the state that has a law giving a right of action for such death is not in violation of the constitutional provision requiring equal privileges to be given to the citizens of the several states. Chambers v. B & O.R.R., 207 U.S. 142, 28 S. Ct. 34, 52 L. Ed. 143, 1907 U.S. LEXIS 1210, 16 Ohio F. Dec. 123 (1907).

One is not denied the privilege of resorting to courts when he has been given free access to them for a length of time reasonably sufficient to enable an ordinarily diligent man to institute proceedings to protect his rights. Canadian N. Ry. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. Ed. 713, 1920 U.S. LEXIS 1536 (1920).

U.S. Const. art. 4, § 2, cl. 1 is not violated by a statute that gives the courts discretion to dismiss actions brought by nonresidents against foreign corporations on foreign torts. Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377, 49 S. Ct. 355, 73 L. Ed. 747, 1929 U.S. LEXIS 52 (1929).

For a state to deny citizens from other states, suitors under the federal employers' liability act, access to its courts would, if it permitted access to its own citizens, violate the privileges and immunities clause. Miles v. Illinois C. R. Co., 315 U.S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 1942 U.S. LEXIS 785, 146 A.L.R. 1104 (1942), rehearing denied, Miles v. Illinois C. R. Co., 316 U.S. 708, 62 S. Ct. 1037, 86 L. Ed. 1775, 1942 U.S. LEXIS 715 (1942), superseded by statute as stated in, Nunn v. Chicago, M., S. P. & P. R. Co., 80 F. Supp. 2d. 745, 1948 U.S. Dist. LEXIS 2171(1948), superseded by statute as stated in, Ex parte Collett, 337 U.S. 55, 69 S. Ct. 944, 93 L. Ed. 1207, 1949 U.S. LEXIS 3096, 10 A.L.R.2d 921 (1949), superseded by statute as stated in, Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 71 S. Ct. 1, 95 L. Ed. 3, 1950 U.S. LEXIS 1429 (1950).

If a fugitive is subsequently convicted in a cause of action wherein due process is afforded him, then no cause of action can be sustained for an alleged violation of civil rights under 42 U.S.C. § 1983. Martin v. Sams, 600 F. Supp. 71, 1984 U.S. Dist. LEXIS 21621 (E.D. Tenn. 1984) (extradition procedures not followed).

14. — —Voter Registration.

Election officials enforcing T.C.A. § 2-2-116, which requires citizens to disclose their social security number as a pre-condition to voter registration, did not discriminate against plaintiff in violation of the privileges and immunities clause, because everyone, whether a state citizen or not, is required to comply with the voter registration laws in order to vote in Tennessee. McKay v. Thompson, 226 F.3d 752, 2000 FED App. 329P, 2000 U.S. App. LEXIS 23387 (6th Cir. 2000), cert. denied, 532 U.S. 906, 121 S. Ct. 1230, 149 L. Ed. 2d 139, 2001 U.S. LEXIS 2020 (2001).

15. Clause 2.

16. —Construction.

This provision is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states, an object which each state is bound, in fidelity to the constitution, to recognize. Appleyard v. Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 1906 U.S. LEXIS 1584, 7 Ann. Cas. 1073 (1906).

No person may be removed lawfully from a state to another state by virtue of this provision, unless: (1) He is charged in a state with treason, felony, or other crime; (2) He has fled from justice; and (3) A demand is made for his delivery to the state wherein he is charged with crime. If any of these conditions are absent, the constitution affords no warrant for a restraint of the liberty of any person. Pierce v. Creecy, 210 U.S. 387, 28 S. Ct. 714, 52 L. Ed. 1113, 1908 U.S. LEXIS 1518 (1908).

Prior to the adoption of the constitution, fugitives from justice were surrendered between the states conformably to what were deemed to be controlling principles of comity, and it was intended by U.S. Const. art. 4, § 2, cl. 2 to embrace fully the subject of interstate rendition and to confer authority upon congress to deal with that subject. Innes v. Tobin, 240 U.S. 127, 36 S. Ct. 290, 60 L. Ed. 562, 1916 U.S. LEXIS 1435 (1916).

The provisions of the constitution of the United States and of the federal statutes do not limit the power of a state to arrest within its borders a citizen of another state for a crime committed elsewhere. Burton v. New York Cent. & H.R.R.R., 245 U.S. 315, 38 S. Ct. 108, 62 L. Ed. 314, 1917 U.S. LEXIS 1742 (1917).

The decisions of the federal courts of last resort, construing the provisions of U.S. Const. art. 4, § 2 pertaining to extradition proceedings, are binding upon the state courts. State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 103 S.W.2d 26, 1936 Tenn. LEXIS 97 (1937).

The matter of extradition does not rest on state statutes but originates in the federal constitution as implemented by congressional enactment, and state legislation on the subject is valid only insofar as it is ancillary to and in aid of federal requirements. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

Once the petitioner was brought within the boundaries of this state, absent outrageous or illegal conduct by the arresting authorities so extreme as to shock the conscience, he could be placed upon trial for any charges pending. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

17. —Application to District of Columbia.

Under the act of congress upon the subject, a fugitive from the District of Columbia may be arrested wherever found and returned for trial. Price v. McCarty, 89 F. 84, 1898 U.S. App. LEXIS 2363 (2nd Cir. 1898).

18. —Application to Territories.

Although the constitutional provision does not in terms refer to the rendition from a territory of a fugitive from a state, congress has legislated upon the subject, and the same principles apply as in the case of rendition from a state. Ex parte Reggel, 114 U.S. 642, 5 S. Ct. 1148, 29 L. Ed. 250, 1885 U.S. LEXIS 1805 (1885).

19. —Crimes Covered.

So called “political offenses” are included. Kentucky v. Dennison, 65 U.S. 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1860).

The words “treason, felony, or other crime,” include every offense forbidden and made punishable by the law of the state where the offense is committed. Kentucky v. Dennison, 65 U.S. 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1860); Ex parte Reggel, 114 U.S. 642, 5 S. Ct. 1148, 29 L. Ed. 250, 1885 U.S. LEXIS 1805 (1885).

It is questionable whether the states could constitutionally enter into any agreement or stipulation with each other for the purpose of defining or limiting the offenses for which fugitives would or should be surrendered. Lascelles v. Georgia, 148 U.S. 537, 13 S. Ct. 687, 37 L. Ed. 549, 1893 U.S. LEXIS 2250 (1893).

The words “treason, felony, or other crime,” found in U.S. Const. art. 4, § 2 include every offense made punishable by the laws of the state where committed, from the highest to the lowest, including misdemeanors, statutory crimes, and acts made crimes by statute at any time after adoption of the federal constitution and enactment of the extradition law. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

20. —Fugitives from Justice.

If a person commits a crime in a state and is found in another state or territory, he is a fugitive from justice. Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544, 1885 U.S. LEXIS 1894 (1885); Appleyard v. Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 1906 U.S. LEXIS 1584, 7 Ann. Cas. 1073 (1906).

U.S. Const. art. 4, § 2 does not authorize the board of directors of an infirmary in a state to compel a sheriff of another state to receive into his custody a pauper who is a resident of the latter state and who was found by such directors in the state of their residence. State ex rel. Board of Directors v. Overman, 157 Ind. 141, 60 N.E. 1017, 1901 Ind. LEXIS 134 (1901).

If a person is in a state at the time he is charged with the commission of a crime and he afterwards leaves the state, no matter for what reason, he may be charged as being a fugitive from justice. Bassing v. Cady, 208 U.S. 386, 28 S. Ct. 392, 52 L. Ed. 540, 1908 U.S. LEXIS 1449, 13 Ann. Cas. 905 (1908).

The reason or motive for his departure is immaterial. Drew v. Thaw, 235 U.S. 432, 35 S. Ct. 137, 59 L. Ed. 302, 1914 U.S. LEXIS 974 (1914).

A fugitive from justice has no right to immunity from arrest until after a requisition has been granted. Burton v. New York Cent. & H.R.R.R., 245 U.S. 315, 38 S. Ct. 108, 62 L. Ed. 314, 1917 U.S. LEXIS 1742 (1917).

To be a fugitive from justice, it is simply necessary that, having committed an act in a state considered there a crime, he afterwards departs and when sought to be prosecuted, is found in another state. Hogan v. O'Neill, 255 U.S. 52, 41 S. Ct. 222, 65 L. Ed. 497, 1921 U.S. LEXIS 1839 (1921).

Where convicts in another state were temporarily released on their bond conditioned that they would return, but failed to appear and forfeited their bond and have come into this state, they are fugitives from justice of the state from which they came, and are subject to arrest and delivery under warrant by the governor of this state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

21. —Extradition of Fugitives.

22. — —Discretion of Governor.

It is discretionary with a state whether a fugitive from justice shall be surrendered or not. Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544, 1885 U.S. LEXIS 1894 (1885).

Since a fugitive has the right to have the governor exercise his personal, nondelegable discretion as to whether fugitive should be extradited, warrant for extradition by private secretary of governor during latter's absence was void, so that prisoner held thereunder had to be discharged. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

The asylum state by legislation has no power to limit the right of its chief executive to grant warrants of extradition. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

U.S. Const. art. 4, § 2 places a positive duty on the governor of the asylum state to return fugitives from justice upon proper demand of the executive authority of the state in which the fugitive is charged. The enforcement of a forfeited bond would not meet the requirements placed on the executive of the asylum state. Mandina v. State, 749 S.W.2d 472, 1985 Tenn. Crim. App. LEXIS 3289 (Tenn. Crim. App. 1985).

23. — — —Judicial Review.

Judicial review of a governor's extradition action in the asylum state is limited to the following issues: (1) Whether the extradition documents are in order on their face; (2) Whether the petitioner has been charged with a crime in the demanding state; (3) Whether the petitioner is the person named in the request for extradition; and (4) Whether the petitioner is a fugitive. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

24. — —Authority of Governor.

Provision of § 40-1016 (now § 40-9-116) for issuance of warrant of arrest by governor pursuant to extradition request of a sister state was consistent with the federal constitution and statutes, was an executive function and did not violate Tennessee constitutional provisions relative to separation of powers. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

A governor's grant of extradition is prima facie evidence that the requirements fixed by the constitution and by statutes have been met. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

25. — —Determination by Governor.

Whether, in fact, a person indicted for crime and found in another state is a fugitive from justice is for the determination of the governor of the latter state. Hogan v. O'Neill, 255 U.S. 52, 41 S. Ct. 222, 65 L. Ed. 497, 1921 U.S. LEXIS 1839 (1921).

In passing upon the requisition, the governor of the asylum state must decide the question of law as to whether the person demanded is substantially charged with a crime against the laws of the state from which he fled by an indictment or an affidavit, and the question of fact as to whether he is a fugitive from such state. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

26. — —Requirements for Requisition.

To warrant extradition, the fugitive must have been actually, and not merely constructively present within the demanding state at the time of the commission of the offense. Hyatt v. People ex rel. Corkran, 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657, 1903 U.S. LEXIS 1313 (1903); Keller v. Butler, 246 N.Y. 249, 158 N.E. 510, 1927 N.Y. LEXIS 869, 55 A.L.R. 349 (1927).

When the statutory prerequisites appear, the executive to whom demand for extradition is presented should cause the arrest of the alleged fugitive; but, if the requisition is defective upon its face, demand may or should be refused. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

The governor of the asylum state has the right, and it is his duty, to require the production of evidence showing every fact essential to the validity of the demand made by the governor of the demanding state before issuing his warrant for extradition of a prisoner. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

Requisition by governor of demanding state and warrant of governor of asylum state made out a prima facie case for extradition. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

It will be presumed, in absence of proof to the contrary, that a duly certified copy of indictment accompanied the requisition of a demanding state, and that it was before the governor of the asylum state when his warrant for extradition was issued, his recitals in the warrant being prima facie evidence that all essential facts were before him upon such issuance. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

The warrant issued by the governor of the asylum state must show demand for requisition, that the requisition was accompanied by a copy of an indictment or affidavit charging the offense, and that the copy of the indictment or affidavit was certified by the governor of the demanding state. State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422, 1930 Tenn. LEXIS 45 (1930).

27. — —Hearing.

A person surrendered by a state to another state as a fugitive from justice cannot claim that he shall be exempt from trial for all offenses except the one on which he was surrendered. Lascelles v. Georgia, 148 U.S. 537, 13 S. Ct. 687, 37 L. Ed. 549, 1893 U.S. LEXIS 2250 (1893); Knox v. State, 164 Ind. 226, 73 N.E. 255, 1905 Ind. LEXIS 23, 3 Am. Ann. Cas. 539, 108 Am. St. Rep. 291 (1905).

Persons who are charged with being fugitives from justice have no constitutional right to demand a hearing, and a governor of a state who is requested to issue a warrant of extradition must act upon such evidence as is satisfactory to him. If it is clear that the person alleged to be a fugitive was not in the state where the crime was committed at the time of its commission, he will be discharged on habeas corpus. Munsey v. Clough, 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515, 1905 U.S. LEXIS 907 (1905).

Persons who arrest fugitives from justice are not required to grant such fugitives an opportunity to test the legality of their arrest by legal proceedings. Pettibone v. Nichols, 203 U.S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 1906 U.S. LEXIS 1582 (1906).

The governor of a state may act upon the papers presented to him demanding the return of a fugitive from justice without other evidence, and in the absence of, and without notice to the accused. An executive need not refuse to execute extradition papers because it is alleged that the fugitive will not be fairly tried if he is returned to the state from which he fled. Marbles v. Creecy, 215 U.S. 63, 30 S. Ct. 32, 54 L. Ed. 92, 1909 U.S. LEXIS 1732 (1909).

28. — — —Issues.

In an extradition proceeding, the only questions for consideration are whether the alleged fugitives are charged with a crime committed in the demanding state and are fugitives from justice of that state; and if such questions are decided affirmatively, the governor should issue his warrant for their return to the demanding state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

Where persons charged with a crime in another state voluntarily appeared and defended the charge in that state, and on conviction were released on bond pending an appeal of the case, and forfeited their bond by coming into this state and failing to return to the jurisdiction of the state in which they were convicted, they thereby waived the right to contest, in extradition proceedings, the question of bodily presence within the demanding state at the time of the commission of the alleged crime for which they consented by their voluntary appearance to be tried in the court of the demanding state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

Substantive issues of speedy trial, due process, and double jeopardy are not appropriate concerns of courts in extradition proceedings in asylum states. Beckwith v. Evatt, 819 S.W.2d 453, 1991 Tenn. Crim. App. LEXIS 407 (Tenn. Crim. App. 1991), appeal denied, State v. Beckwith, — S.W.2d —, 1991 Tenn. LEXIS 414 (Tenn. Sept. 30, 1991).

29. — — —Indictment.

If a person is taken from a state into another state as a fugitive from justice, and the charge upon which he was extradited is dismissed and he then leaves the state, he may afterwards be again extradited on a new indictment for the same offense. Bassing v. Cady, 208 U.S. 386, 28 S. Ct. 392, 52 L. Ed. 540, 1908 U.S. LEXIS 1449, 13 Ann. Cas. 905 (1908).

An indictment which charges the commission of a crime may be sufficient in extradition proceedings, although it may not be technically sufficient as a criminal pleading. Pierce v. Creecy, 210 U.S. 387, 28 S. Ct. 714, 52 L. Ed. 1113, 1908 U.S. LEXIS 1518 (1908); Marbles v. Creecy, 215 U.S. 63, 30 S. Ct. 32, 54 L. Ed. 92, 1909 U.S. LEXIS 1732 (1909).

If a statutory crime or misdemeanor is apparently set forth in the indictment or warrant submitted with the requisition, or made a part of it, the presumption is that such act is an offense under the laws of the demanding state. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

30. — — —Evidence.

Rules of evidence in extradition proceedings shall not be rigidly applied, and evidence should be construed liberally in favor of the demanding state. State v. Lann, 567 S.W.2d 772, 1978 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1978); State v. Whitt, 753 S.W.2d 369, 1988 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1988).

31. — —Habeas Corpus Proceedings.

Federal courts cannot, on habeas corpus, inquire into mixed questions of law and fact that may arise in proceedings for the extradition of fugitives from justice. Pierce v. Creecy, 210 U.S. 387, 28 S. Ct. 714, 52 L. Ed. 1113, 1908 U.S. LEXIS 1518 (1908).

Interstate extradition of a person, charged with having conspired to effect his escape from a state insane hospital for criminals, is a matter for the state court, and ought not to be interfered with by habeas corpus. Drew v. Thaw, 235 U.S. 432, 35 S. Ct. 137, 59 L. Ed. 302, 1914 U.S. LEXIS 974 (1914).

The defense that the statute of limitations has run in favor of a fugitive can only be set up on his trial, and not in habeas corpus to obtain his release. Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S. Ct. 41, 62 L. Ed. 193, 1917 U.S. LEXIS 1796 (1917).

The validity neither of a federal nor state enactment can be drawn in question in a habeas corpus proceeding to inquire into a detention under an extradition warrant. Ireland v. Woods, 246 U.S. 323, 38 S. Ct. 319, 62 L. Ed. 745, 1918 U.S. LEXIS 1551 (1918).

While it is for the governor of the asylum state, not the courts, to determine whether or not there should be compliance with the demand for extradition, the action of the executive is open to judicial inquiry on habeas corpus. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

In habeas corpus proceedings for the return of alleged fugitives from the demanding state, the governor of this state should not inquire into the sufficiency of the indictment as a matter of technical pleading, but should issue his warrant for the return of the alleged fugitives, if it appears that the indictment substantially charges an offense for which the alleged fugitives may be returned to the demanding state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

If a person sought to be extradited on demand of another state as a fugitive from justice is not a fugitive within the meaning of U.S. Const. art. 4, § 2, he is entitled to be discharged in habeas corpus proceedings. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

Warrant of New York state parole board containing no affidavit and not authenticated in any manner by the chief executive of New York was fatally defective, and where in habeas corpus proceeding respondent attached such warrant as an exhibit to his answer along with rendition warrant the presumptions arising from recitals in rendition warrant were overthrown. State ex rel. Daugherty v. Payne, 180 Tenn. 268, 174 S.W.2d 457 (1943).

Under U.S. Const. art. 4, § 2 and the implementing statute, § 40-1014 (now § 40-9-114), where a defendant filed a habeas corpus petition contesting extradition to another state, the rendition warrant created a prima facie case that the petitioner was lawfully charged with a crime in the demanding state and fled therefrom, and, although he may show that he was not in the demanding state at the time of the alleged crime, to procure his release under habeas corpus he must show such absence beyond a reasonable doubt; and the court of the asylum state cannot consider technical objections to the charge in the demanding state but must leave the petitioner to his rights to raise such objections in the proceedings in the demanding state. McLaughlin v. State, 512 S.W.2d 657, 1974 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1974); State ex rel. Ezell v. Evatt, 512 S.W.2d 673, 1974 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1974).

Once extradition is granted, judicial review by habeas corpus is limited to consideration of whether: (1) The extradition documents are in order on their face; (2) The demanding state has charged the petitioner with a crime; (3) The person named in the request for extradition is the petition before the court; and (4) The petitioner is a fugitive. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

Petitioner contesting extradition through habeas corpus could not raise issues that involved possible constitutional violations committed by asylum state. State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

32. — —Charges Pending in Both States.

The governor's signing of a rendition warrant ordering defendant's return to a state seeking extradition did not waive the state's right to exercise jurisdiction over the defendant and place him on trial for charges pending in the state. Johns v. Bowlen, 942 S.W.2d 544, 1996 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. 1996).

Collateral References.

Constitutionality of State Bankruptcy-Specific Exemptions Under Supremacy Clause and Bankruptcy Clause of U.S. Constitution (U.S. Const., Art. VI, cl. 2 and Art. I, § 8, cl. 4). 77 A.L.R.6th 273.

NOTES TO DECISIONS

1. Clause 1.

2. —Admission of States.

Upon the admission of a state into the Union the state acquires general jurisdiction, civil and criminal, except where it has ceded exclusive jurisdiction to the United States. Van Brocklin v. Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845, 1886 U.S. LEXIS 1822 (1886).

Upon the admission of a state to the Union it at once becomes entitled to and possessed of all the rights of domain and sovereignty which belonged to the original states. Huse v. Glover, 119 U.S. 543, 7 S. Ct. 313, 30 L. Ed. 487, 1886 U.S. LEXIS 2026 (1886).

Absolute property in, and dominion and sovereignty over the soils under the tide waters in the original states were reserved to the several states, and new states admitted into the Union have the same rights in that respect as the original states. Knight v. United States Land Ass'n, 142 U.S. 161, 12 S. Ct. 258, 35 L. Ed. 974, 1891 U.S. LEXIS 2579 (U.S. Dec. 21,1891).

A state when admitted into the Union is entitled to the soil under the navigable waters below high water mark within the limits of the state not previously granted. Mobile Transp. Co. v. Mobile, 187 U.S. 479, 23 S. Ct. 170, 47 L. Ed. 266, 1903 U.S. LEXIS 1667 (1903).

Since the western boundary of this state, upon its admission as a state, was the “middle of the Mississippi River,” designation of the eastern boundary of Arkansas as the “middle of the main channel,” upon its subsequent admission as a state, will be construed as not intended to designate a different boundary than that of this state, since, under U.S. Const. art. 4, § 3, cl. 1, congress had no power to change the boundaries of this state as fixed by it when the state was admitted. State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437, 1907 Tenn. LEXIS 4 (Tenn. Sep. 1907), rev'd, Cissna v. Tennessee, 246 U.S. 289, 38 S. Ct. 306, 62 L. Ed. 720, 1918 U.S. LEXIS 1547 (1918).

The boundary of the state as defined in the United States supreme court opinion in Arkansas v. Tennessee , 246 U.S. 158, 38 S. Ct. 301, 62 L. Ed. 638, 1918 U.S. LEXIS 1531 (1918), is a line drawn along the middle of the main channel of navigation of the Mississippi River as it was at the time when the current ceased to flow therein as a result of the avulsion of 1876, and without regard to changes in the banks or channels that had occurred through the natural and gradual processes of erosion and accretion prior to the avulsion. State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437, 1907 Tenn. LEXIS 4 (Tenn. Sep. 1907), rev'd, Cissna v. Tennessee, 246 U.S. 289, 38 S. Ct. 306, 62 L. Ed. 720, 1918 U.S. LEXIS 1547 (1918).

3. Clause 2.

4. —Property of United States.

The control of the United States over its own property is not dependent upon locality, and its regular, just and necessary powers cannot be interfered with by a state. Irvine v. Marshall, 61 U.S. 558, 15 L. Ed. 994, 1857 U.S. LEXIS 487 (1857).

The federal government has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case. Camfield v. United States, 167 U.S. 518, 17 S. Ct. 864, 42 L. Ed. 260, 1897 U.S. LEXIS 2114 (1897).

U.S. Const. art. 4, § 3, cl. 2 does not grant to congress any legislative power over the states, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Kansas v. Colorado, 206 U.S. 46, 27 S. Ct. 655, 51 L. Ed. 956, 1907 U.S. LEXIS 1145 (1907).

Congress may exercise control over the property of the United States to the same extent that an individual can control his property. Light v. United States, 220 U.S. 523, 31 S. Ct. 485, 55 L. Ed. 570, 1911 U.S. LEXIS 1696 (1911).

5. —Disposal of Property.

Tennessee Valley Authority agency could sell electric power generated at dams authorized by Act (F. C. A., title 16, § 831), since electric power was property of the United States. Ashwander v. TVA, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688, 1936 U.S. LEXIS 947 (1936), rehearing denied, Ashwander v. Tennessee Valley Authority, 297 U.S. 728, 56 S. Ct. 588, 80 L. Ed. 1011 (1936); Georgia Power Co. v. TVA, 14 F. Supp. 673, 1936 U.S. Dist. LEXIS 1358 (N.D. Ga. May 28, 1936), aff'd 89 F.2d 218, 1937 U.S. App. LEXIS 3433 (5th Cir. Ga. Mar. 17, 1937); Tennessee Elec. Power Co. v. TVA, 21 F. Supp. 947, 1938 U.S. Dist. LEXIS 2480 (E.D. Tenn. 1938), aff'd, Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), dismissed, Hicks v. Mutual L. Ins. Co., 59 S. Ct. 54, 305 U.S. 564, 83 L. Ed. 355, 1938 U.S. LEXIS 666 (1938), dismissed, Tennessee Electric Power Co. v. Tennessee Valley Authority, 59 S. Ct. 54, 305 U.S. 663, 83 L. Ed. 430, 1938 U.S. LEXIS 857 (1938); Tennessee Valley Authority v. Lenoir City, 72 F. Supp. 457, 1947 U.S. Dist. LEXIS 2538 (D. Tenn. 1947).

6. —Public Lands.

Congress has exclusive power to control and dispose of public and unoccupied lands acquired by the United States under U.S. Const. art. 4, § 3, cl. 2. Van Brocklin v. Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845, 1886 U.S. LEXIS 1822 (1886).

Congress not only has legislative power over the public domain, but it also exercises the powers of the proprietor therein. United States v. Midwest Oil Co., 236 U.S. 459, 35 S. Ct. 309, 59 L. Ed. 673, 1915 U.S. LEXIS 1776 (1915), superseded by statute as stated in, Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172, 2004 U.S. Dist. LEXIS 9865 (2004), superseded by statute as stated in, Yount v. Salazar, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 38616 (D. Ariz. 2013).

7. —Indians.

Congress may provide that lands set apart to Indians shall not be conveyed by them without the consent of the secretary of the interior. Tiger v. Western Inv. Co., 221 U.S. 286, 31 S. Ct. 578, 55 L. Ed. 738, 1911 U.S. LEXIS 1734 (1911).

While an Indian is still a ward of the nation, there is power in congress to impose restrictions on property already freed. McCurdy v. United States, 246 U.S. 263, 38 S. Ct. 289, 62 L. Ed. 706, 1918 U.S. LEXIS 1543 (1918).

NOTES TO DECISIONS

1. Republican Form of Government.

U.S. Const. art. 4, § 4 does not designate any particular government as republican, but the fact that all the states have governments when the constitution was adopted, and that these were not changed, furnishes unmistakable evidence of what was republican in form within the meaning of the constitution. Minor v. Happersett, 88 U.S. 162, 22 L. Ed. 627, 1874 U.S. LEXIS 1354 (1875).

The distinguishing feature of a republican form of government is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies; but by their written constitutions the people themselves have set bounds to their own power, as against the sudden impulses of mere majorities. In re Duncan, 139 U.S. 449, 11 S. Ct. 573, 35 L. Ed. 219, 1891 U.S. LEXIS 2396 (U.S. Mar. 30, 1891).

It is a question of local policy with each state what shall be the extent and character of the powers which its various political and municipal organizations shall possess, and although the determination of the territorial boundaries of a municipal corporation may be purely a legislative function, there is nothing in the federal constitution to prevent a state from giving full jurisdiction over such matters to the courts if it sees fit. Forsyth v. Hammond, 166 U.S. 506, 17 S. Ct. 665, 41 L. Ed. 1095, 1897 U.S. LEXIS 2045 (1897).

The provision of the constitution that every state shall have a republican form of government is of a political character committed exclusively to congress, and is beyond the jurisdiction of the courts. Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377, 1912 U.S. LEXIS 2220 (1912); Kiernan v. Portland, 223 U.S. 151, 32 S. Ct. 231, 56 L. Ed. 386, 1912 U.S. LEXIS 2221 (1912); Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 50 S. Ct. 228, 74 L. Ed. 710, 1930 U.S. LEXIS 366, 66 A.L.R. 1460 (1930).

The guaranty of a republican form of government as provided in U.S. Const. art. 4, § 4 is not a question for the federal supreme court, but depends for enforcement upon political and governmental action through powers conferred by congress. Marshall v. Dye, 231 U.S. 250, 34 S. Ct. 92, 58 L. Ed. 206, 1913 U.S. LEXIS 2564 (1913).

Whether or not a state has ceased to be republican in form because it has made the referendum a part of the legislative power is not a judicial question, but a political one, which is solely for congress to determine. Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S. Ct. 708, 60 L. Ed. 1172, 1916 U.S. LEXIS 1679 (1916); Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685, 1917 U.S. LEXIS 2107, 1917D Ann. Cas. 642 (1917).

A complaint alleging that Acts 1901, ch. 122, apportioning members of the general assembly, constituted an arbitrary and capricious state action offensive to U.S. Const. amend. 14 in its irrational disregard of the standard of apportionment prescribed by the state's constitution or of any other standard, effecting a gross disproportion of representation to voting population, might also have alleged claim under U.S. Const. art. 4, § 4, which guarantees every state a republican form of government; and while reliance on the claim would have been futile, it does not follow that plaintiff cannot be heard on the equal protection claim as long as equal protection claim is not so enmeshed with those political question elements which render guaranty clause claims nonjustifiable as actually to present a political question itself. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 1962 U.S. LEXIS 1567 (1962).

Claims under U.S. Const. art. 4, § 4, which guarantees a republican form of government to every state, involve those elements which define a political question; for that reason and no other they are not justiciable. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, 1962 U.S. LEXIS 1567 (1962).

The federal judiciary clearly has the duty and the power to prohibit segregation in the schools of Tennessee, but it does not follow that the judiciary has any corresponding authority to dictate the specific financial arrangements under which the costs of integrating the schools shall be handled; as long as those costs are in fact paid, there is no justification for an unelected judiciary making policy judgments as to how the tax burden shall be allocated. Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986, 1987 U.S. App. LEXIS 16899 (6th Cir. Tenn. 1987), cert. denied, Metropolitan County Bd. of Educ. v. Tennessee, 487 U.S. 1206, 108 S. Ct. 2848, 101 L. Ed. 2d 885, 1988 U.S. LEXIS 2848 (1988).

2. Internal Changes.

U.S. Const. art. 4, § 4 does not prohibit a state from changing the boundaries of a school district, giving to the new district the property within its limits which belonged to the old, and obligating the new district to pay the debts of the old. Attorney Gen. ex rel. Kies v. Lowrey, 199 U.S. 233, 26 S. Ct. 27, 50 L. Ed. 167, 1905 U.S. LEXIS 1025 (1905).

3. Right to Vote.

In order to constitute a republican form of government, it is not necessary that women, or any other class of citizens, shall be given the right of suffrage. Minor v. Happersett, 88 U.S. 162, 22 L. Ed. 627, 1874 U.S. LEXIS 1354 (1875).

4. Municipal Annexation.

Sections 6-309 and 6-310 (now §§ 6-51-102 and 6-51-103), in providing for municipal annexation of contiguous territory, do not violate the constitutional guarantees. State ex rel. Hudson v. Chattanooga, 512 S.W.2d 555, 1974 Tenn. LEXIS 487 (Tenn. 1974), cert. denied, Hartley v. Chattanooga, 419 U.S. 1070, 95 S. Ct. 657, 42 L. Ed. 2d 666, 1974 U.S. LEXIS 3724 (1974), superseded by statute as stated in, Kingsport v. State, 562 S.W.2d 808, 1978 Tenn. LEXIS 592 (Tenn. 1978).

Cross-References. Search warrant required to obtain location information of an electronic device and exceptions to warrant requirement, § 39-13-610.