Digital Commons Network^™

Constitutional Law-Double Jeopardy-Acquittal In Prior Criminal Prosecution As Bar To Action For Penalties Based In Fraud, Allan A. Rubin

Michigan Law Review

Defendant had been acquitted of a criminal charge of wilfully attempting to evade or defeat an income tax under section 146(b) of the Federal Revenue Act of 1928. Subsequently this action was initiated for the collection of an additional fifty per cent of the total amount of the deficiency under section 293 (b) of the same act, which provides that if any deficiency is due to fraud with intent to evade the tax, fifty per centum of such deficiency in addition to the amount of the deficiency shall be collected. Plaintiff brought certiorari from an order of modification eliminating the …

Constitutional Law - Validity Of Sex Offender Acts, William K. Jackson

Michigan Law Review

The sex offender has become an acute problem. Sociologists, psychiatrists, and lawyers sensing the imperative need for action have devoted much time and thought to the questions involved. Experience has shown that the sex offender is generally a recidivist; he has to be arrested and committed repeatedly for the same type of crimes. The point is graphically illustrated by the case of a man, fifty-nine years of age, arrested recently in Detroit for a sex offense involving a youth. An examination of his record showed that he had been arrested in 1899, when twenty-one years of age, on charges involving …

Carriers - Discrimination -Allowance In Lieu Of Spotting Service By Railroads -Validity Of Cease And Desist Order, Arthur P. Boynton

Michigan Law Review

Nine industrial corporations sought to set aside an order of the Interstate Commerce Commission commanding the railroad or railroads serving industrial plants of the plaintiffs to cease and desist from the payment of allowance for the spotting of cars and switching services performed by plaintiffs on plant facilities. They contended the commission exceeded its powers in making the order and that its findings were not supported by substantial evidence. Held, that there was substantial evidence to support the findings and that the order was valid and should be sustained. United States v. Pan American Petroleum Corp., 304 U.S. …

Mr. Justice Cardozo And Problems Of Government, Dean G. Acheson

Michigan Law Review

The sorrow with which the entire nation learned of the death of Mr. Justice Cardozo bears witness to the sense of loss felt by the great body of his fellow citizens. Few of the people who mourn him had personal opportunity to know the high qualities of his mind or his saintly character. Yet they truly feel that between him and the thought and spirit of his time there was fundamental sympathy and understanding. In a real sense the cast of his thinking was the product of his age. This awareness of his time was coupled in him with sensitiveness …

Obligatory Jurisdiction Of The Supreme Court: Appeals From State Courts Under Section 237(A) Of The Judicial Code, Seymour J. Rubin, Sidney H. Willner

Michigan Law Review

In two ways, a case decided by the state court of last resort may come to the Supreme Court of the United States: by certiorari, or by appeal. Certiorari is discretionary; and the considerations which will lead the Court to grant a writ of certiorari are set out in Rule 38 of the Supreme Court Rules, and are well-known to the practicing bar. Appeal, however, is directed to the obligatory jurisdiction of the Court. Rule 12 merely sets out the procedure to be followed in seeking an appeal; and for his decision as to whether he has substantive basis for …

Bills And Notes - Effect Of Endorsement "For Deposit'' - Liability Of Later Intermeddlers, Robert Meisenholder

Michigan Law Review

Plaintiff's evidence indicated that as payee of a check she endorsed it "for deposit Lena Soma" and gave it to one Handrulis for safekeeping. On the pretense that the check was his, he gave it to Sarah Alkoff, who endorsed it in blank and deposited it at the Globe bank. The Globe bank in turn sent it through the Federal Reserve Bank for collection to the drawee bank, which paid the check. The amount of the check credited to Sarah Alkoff was paid out by the Globe bank on her checks to Handrulis. The suit for diversion of the check …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Reference has already been made to the difficulties arising when the widow has elected to take under the will, and for some reason or other, intestate property also remains to be disposed. Further difficulty arises in those cases where the widow elects to take against the will and yet claims to share in intestate property. Shall her claim be allowed under those circumstances?

Securities Legislation - Securities Act - Stop Order Proceedings - Administrative Tests Of Materiality, Bertram H. Lebeis

Michigan Law Review

With a view toward correcting many of the abuses which had accompanied the distribution of securities, the Congressional mandate embodied in the Securities Act of 1933, together with the regulations of the Securities and Exchange Commission adopted in pursuance thereof, require the publication of much information previously withheld from the investing public. The basic objective of the act is the full disclosure of every essentially important element attending issues of securities in interstate commerce or through the mails, and to that end the commission is empowered to issue a stop order suspending the effectiveness of a registration statement if it …

Corporations -Parent And Subsidiary-Right Of Parent Or Subsidiary To Share With Other Creditors In Assets Of Associated Corporation On The Latter's Insolvency, Collins E. Brooks

Michigan Law Review

Increasingly in the past few years, courts throughout the country have seemed willing to disregard what Professor Ballantine has called the "basic theory of corporation law," the concept that a corporation is an entity entirely distinct and separate from its stockholders. It is not the purpose of this writer to take issue with this tendency; for the most part the decisions seem sound and the results just. It is believed, however, that the rules used by the courts in reaching those decisions are, in many instances, open to question. There is one situation in particular in which the courts have …

Evidence-Best Evidence Rule-Use Of Summaries Of Voluminous Originals, Benjamin H. Dewey

Michigan Law Review

The best evidence rule usually requires that in proving the contents of documents, the documents themselves must be produced. However, the doctrine is firmly established that where the fact or facts to be ascertained can only be determined by the inspection of a large number of records, papers, books of account, or other like documents, the best evidence rule will be relaxed, and an oral or written summary of such voluminous mass of data may be allowed in evidence. This is done on the basis that the production of the originals is impractible, inexpedient and time-devouring, and because the summary …

Bailments - Liability Of Parking Lot Owner For A Stolen Car, M. D. Blackwell

Michigan Law Review

Plaintiff parked her car at defendant's parking lot, paying the required fee and leaving the key in the car. The plaintiff testified that this was done at the attendant's request, and this testimony was not directly controverted. The attendant left the lot about midnight, and some time after that time the car was stolen. Held, that a bailment existed, and that the plaintiff had set up a prima facie case of liability on the part of the bailee for failing to exercise due care. Auto Ins. Co. v. Syndicate Parking Co., 58 Ohio App. 148, 16 N. E. …

Evidence - Municipal Ordinances - Admission Of Evidence Of Enactment When Record Is Silent, Robert E. Sipes

Michigan Law Review

In a suit by a village to require the removal of the equipment of an electric distribution company from the streets of the village, the company sought to introduce in evidence a copy of a purported ordinance giving it a twenty-five year franchise. There was no mention of such an ordinance in the record of proceedings of the village council. Held, such evidence is not admissible to show the acts of a municipal council when the records of its proceedings are available. Village of Deshler v. Southern Nebraska Power Co., 133 Neb. 778, 277 N. W. 77 ( …

Fixtures - Uniform Conditional Sales Act - Interpretation Of The Word "Freehold", Robert E. Sipes

Michigan Law Review

Plaintiff installed elevators in an apartment house under construction. The elevators were covered by a conditional sale contract with the general contractor. Prior to the sale of the elevators the apartment house had been mortgaged. Upon the contractor's default in payment for the elevators, plaintiff asserted his right to remove the elevators as against the owner of the apartment and the mortgagee. Held, the elevators could be removed. Otis Elevator Co. v. Arey-Hauser Co., (D. C. Pa. 1938) 22 F. Supp. 4.

Interstate Commerce - Right Of State To Deny Use Of Highways To Carrier Having Certificate From Interstate Commerce Commission, Ralph Winkler

Michigan Law Review

A common carrier engaged in interstate commerce applied to the Interstate Commerce Commission for a certificate of convenience and necessity as required by section 206 of the Federal Motor Carrier Act of 1935. The carrier relied on the proviso authorizing the commission to grant a certificate without a showing of public convenience and necessity where the applicant was a carrier in bona fide operation on June 1, 1935; the statute further privileged a carrier applying for a certificate under this proviso to continue operation pending determination of its application. The State Railroad Commission of Texas earlier in 1934 had denied …

Trade Regulation - Right Of Employer To Enjoin Former Employee From Soliciting Employer's Customers, Michigan Law Review

Michigan Law Review

Defendants had formerly been employed as solicitors for the plaintiff, a corporation engaged in the business of selling teas, coffees, spices, and other products at retail. There were no restrictive covenants in the employment contract and within a few months after leaving plaintiff's employ, defendants entered into a similar business in competition with the plaintiff and solicited customers with whom they became acquainted while in plaintiff's service. Plaintiff appealed from an order sustaining a demurrer to its bill which sought to restrain defendants from such soliciting. Held, order affirmed. In the absence of a contract and where the employee …

The Doctrine Of Administrative Trespass In French Law: An Analogue Of Due Process, Armin Uhler

Michigan Law Review

The French droit administratif, since Dicey's critical and unsympathetic comments in his lectures and works on the English constitution, has continued to attract a great deal of interest in the English-speaking world. In this country the more recent references to the system known by that name are prompted by something more than academic curiosity. Unprecedented expansion of administrative activity, particularly on the part of the federal government, has focused attention on many problems which have become acute because of that fact. Unquestionably, one of the most vexing among them is the question of review of administrative action upon the …

The Public Interest Concept In Law And In Economics, Robert W. Harbeson

Michigan Law Review

It is an interesting and perhaps important coincidence that only a year previous to the famous decision in Nebbia v. New York there appeared two volumes which together constitute an equally notable landmark in the development of economic doctrine, Professor Edward Chamberlin's Theory of Monopolistic Competition and Mrs. Joan Robinson's Economics of Imperfect Competition. While there is no evidence that the latter works influenced the outcome of the Nebbia case, the writer is of the opinion that these studies not only afford a rationale of that decision but also make desirable a re-examination of the concept of "businesses affected …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Before launching into the discussion proper, and in order to avoid confusion and misunderstanding later on, it is deemed wise at once to mark out boundaries within which it is proposed to confine the treatment of the subject here involved. Accordingly, in that which follows, attention will be centered largely on the necessity for election by a widow under modern statutes which allow her to take against her husband's will, and on the effects of her election or non-election upon her interest in her husband's estate. In so far as a surviving husband has identical rights, they will be adverted …

Arrest - Stopping And Questioning As An Arrest - Reasonable Suspicion From Facts Disclosed By Questioning As Justification, Robert Meisenholder

Michigan Law Review

After arrest of the defendant on mere suspicion without probable cause, the arresting officers on searching the car in which he was driving found two guns. The defendant complained on appeal, after conviction for carrying concealed weapons in an automobile, of the denial of his motion before trial to suppress the evidence. Held, it was error to refuse to suppress the guns as evidence because, the arrest being unlawful, the subsequent search and seizure was unlawful. Had the officers stopped and questioned the defendant, and had such questioning disclosed facts to establish a reasonable suspicion that the defendant was …

Adverse Possession - Severance Of Minerals And Surface - Adverse Possession As Affecting Title To The Minerals, John M. Ulman

Michigan Law Review

The land in question was set aside by the state for school purposes. For some time prior to 1881 one Bailey had been in possession. At that time he and his children, to whom he had deeded parts of the land, conveyed the mineral interests to a grantee from whom plaintiff claims. At the time of the conveyance the evidence was insufficient to show title by adverse possession in Bailey. Bailey and his grantees, from whom defendant claims, remained in possession until this action was brought. The limitation ceased running against the state by an act of the legislature at …

Criminal Law And Procedure - Admissibility Of Confessions - Exhortations To Tell The Truth, Dan K. Cook

Michigan Law Review

Defendant, while in the custody of police officers, confessed to the crime of murder. It was shown that the police officers during the course of defendant's examination, stated to the defendant that "it was better for him to tell the whole truth," and ''You are not telling the truth, give us the truth on this," "You might as well tell the truth; to me now," "I advise you to tell the truth in this case." In the subsequent prosecution of the defendant for murder, it was held that the confession was properly admissible notwithstanding these statements by the officers. Commonwealth …

Negligence - Liability For Emotional Disturbance, William K. Jackson

Michigan Law Review

Defendant negligently sold unlabeled poisoned bran, thereby causing the death of or permanent injury to the buyer's cows, and the loss of his dairy business. As a result of this calamity, the buyer died from a decompensated heart caused by emotional distress and nervous shock. The buyer had commenced action for damages and it is continued here by his wife as administratrix of his estate. Held, recovery may be had for the buyer's death. Rasmussen v. Benson, (Neb. 1938) 280 N. W. 890.

Parent And Child - Duty Of Mother To Support Child When Father Is Alive, Thomas E. Wilson

Michigan Law Review

Plaintiff obtained a divorce from defendant, and at the time of the divorce voluntarily undertook to care for and support their twenty-one year old son, who was afflicted with tuberculosis and unable to support himself. The son resided with his mother until his death. She instituted this action against the father to recover for the care and support of the son from the time of the divorce until his death and for funeral expenses, relying upon a statute imposing upon specified classes or relatives of poor persons a duty to maintain them, which statute the plaintiff contended imposed a duty …

Taxation - Federal Estate Tax - Gift In Contemplation Of Death, Edmund O'Hare

Michigan Law Review

Decedent, when eighty years old and while still in good health, set up an irrevocable trust of one-third of his property, with a life estate to his daughter and remainder over on the daughter's death to her children and descendants. Under the trust deed the income was to be accumulated and added to the principal until the donor's death. The Supreme Court found that decedent, who was thinking about speculating on the stock exchange, was anxious to insure adequate provision for his daughter and her descendants upon his death, and that he therefore determined to make an irrevocable disposition of …

Criminal Law And Procedure - Appeal By State - Constitutionality Of Statutes-Due Process Of Law, Edward D. Ransom

Michigan Law Review

Developing as a result of a period when an accused person was placed at a tremendous disadvantage at the hands of tyrannical judges exercising an unconscionable abuse of power, the concept that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb" was put into the Fifth Amendment of the Federal Constitution and into many of the state constitutions. As a part of this double jeopardy concept, the American courts, from the first, established the rule that the state should not be allowed to appeal in a criminal prosecution. The accused, …

Labor Law - Workers Who Struck Prior To Effective Date Of National Labor Relations Act As "Employees" Within The Meaning Of Act, Edward J. Wendrow

Michigan Law Review

Prior to the passage of the Wagner Act, respondent's employees went on strike when the respondent refused to negotiate with the union. Thereupon respondent notified them they were all discharged and that the mill was closing down. Subsequent to the effective date of the act, respondent still refused to negotiate with the union and refused to hire any strikers who would not sign a "yellow dog" contract. The National Labor Relations Board held the refusal to negotiate and the discrimination in regard to hire to be violations of section 8 (5) and (3) respectively of the act and, inter alia …

"Extra Time For Overtime" Now Law, Frank E. Cooper

Michigan Law Review

The Fair Labor Standards Act of 1938 presents a great many legal and practical problems of importance commensurate with the comprehensiveness of the act itself, which is probably the most far-reaching of the New Deal statutes since the N. R. A. The act is conceived on the theory that any physical handling of goods destined to be subsequently shipped to another state is an act so closely and substantially related to the flow of interstate commerce as to be subject to Congressional regulation, and thus depends for its validity upon an extension of the theories approved in the Wagner Act …

Recent Developments In Actions Against Nonresident Motorists, Maurice S. Culp

Michigan Law Review

When this subject was discussed several years ago, statutes in thirty-five states authorized service of process upon some state official in actions filed against nonresident motorists. The passage of such legislation has continued. Today, out of the forty-eight states and the District of Columbia, apparently only Missouri, Nevada and Utah do not make some provision for such service.

It is proposed herein to discuss the new statutes which have been enacted since the previous article was written, to consider significant changes and developments in older legislation, and to survey the recent judicial decisions interpreting these process statutes.

Criminal Law And Procedure - Evidence - Dismissal Of Prosecution For Reference To Other Crimes Of Defendant, John Barker Waite

Michigan Law Review

Any discussion of Judge Pecora's declaration of a mistrial in People v. Hines must adhere firmly to the fundamental proposition that every accused person, no matter how evident his guilt nor how great the hostility toward him, is entitled to a fair trial, conducted in accord with established rules, and to the verdict of a jury uninfluenced by improper factors. But did the judge's ruling perhaps exceed what was reasonably necessary to assure the defendant of these essentials?

Insurance - When Is A Person Engaging In The Insurance Business, Thomas E. Wilson

Michigan Law Review

Defendant was secretary of a retail grocers association which maintained a so-called "Plate Glass Fund," for members only, administered by the defendant without compensation. The members paid into the fund a certain sum annually, depending on the amount of glass they wanted protected, and in the event of breakage it was replaced. Surplus funds were returned to the members. The certificates of membership expressly stipulated that the fund was not an insurance or indemnity company. Defendant was prosecuted and convicted for conducting an unauthorized insurance business. Held, the defendant was engaging in the insurance business, and conviction was sustained. …