Digital Commons Network^™

Civil Procedure - Service Of Process Under Nonresident Motorist Statute - Effect Of Death Of Nonresident Defendant, Warren K. Urbom S.Ed..

Michigan Law Review

A wife sued for the wrongful death of her husband, which was allegedly caused by a nonresident defendant's negligent operation of his automobile on a Wisconsin highway while the plaintiff's husband was a passenger therein. Service of process was made on the Commissioner of the Motor Vehicle Department in Wisconsin, and copies of the summons and complaint were mailed to defendant in Illinois in accordance with the Wisconsin nonresident motorist statute. Shortly thereafter, before a judgment was rendered, defendant died. Plaintiff sought to revive the action against defendant's administrator by serving notice of the filing of a petition for revival …

Taxation - Federal Income Tax-What Constitutes Accident Or Health Insurance Under Section 22(B)(5)-, Marvin O. Young

Michigan Law Review

Plaintiff brought this action to recover federal income tax paid by him for the year 1945 on a sum of $1800 which plaintiff received from his employer pursuant to a "free" sickness benefits plan which plaintiff's employer had in effect, claiming that this amount was excludable from gross income under section 22(b)(5) as "amounts received through accident or health insurance." Plaintiff's employer was an insurance company with authority to write health and accident insurance, and "free" protection was given to all full-time salaried home and branch office employees who could pass a satisfactory medical examination. Many ordinary features of a …

Summary Judgment Under The Federal Rules When An Issue Of Fact Is Presented, Mac Asbill, Willis B. Snell

Michigan Law Review

Rule 56 of the Federal Rules of Civil Procedure introduced to federal practice the summary judgment procedure, which had been developed previously in England and several of the states. The scope of rule 56 is the broadest possible, since the rule provides that any party may move for a summary judgment in any type of civil action. Rule 56(c) provides that the court shall grant a motion for summary judgment "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving …

Constitutional Law-Validity Of New York Statute Setting Out Motorists' Implied Consent To Chemical Tests For Intoxication, Richard A. Shupe S.Ed.

Michigan Law Review

The State of New York has approved a statute, to go into effect July 1, 1953, which stipulates that any person who operates a motor vehicle or motorcycle in the state shall be deemed to have given his consent to chemical tests of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood. If such a person refuses to allow the tests, they will not be made, but the commissioner shall revoke his license or permit to drive, including the nonresident operating privilege. This is the first statute of its type and merits …

Executive Agreements And The Proposed Constitutional Amendments To The Treaty Power, John F. Spindler S.Ed.

Michigan Law Review

The advent of the present administration has brought into full bloom a hardy perennial among the annual crop of proposed constitutional amendments. The emergence of the United States from World War II as the leader of the free nations of the world and distrust of the rapid expansion of executive power under the Roosevelt Administration have given impetus to a movement to check any further expansion of the presidential power to conduct our foreign relations. In addition, many people are alarmed by the possibility that this country might become a party to international agreements which would operate to alter or …

Labor Law-State Regulation Of Recognition And Organizational Picketing, Richard D. Rohr S.Ed.

Michigan Law Review

Just as the fixed circumference of spheres of influence tends to reduce clash and friction in world affairs, so peaceful industrial relations are fostered by definite legal rules of conduct. Recent litigation, both by its amount and variety of result, testifies to a continued uncertainty as to the permissible scope of peaceful, primary picketing. The major problems may be subsumed under the loose category of "stranger picketing," but a distinction of some legal significance has developed within this category between picketing by the non-representative union for recognition by the employer and picketing for organizational purposes, that is, to win the …

On Amending The Treaty-Making Power: A Comparative Study Of The Problem Of Self-Executing Treaties, Lawrence Preuss

Michigan Law Review

The current furor concerning the treaty-making power of the United States has been aroused by the apprehension that this country might become a party to certain multilateral treaties in the social and economic fields, and, notably, the draft Covenants on Human Rights, the Genocide Convention and the Convention on Political Rights of Women. The plethora of proposed constitutional amendments now before the Congress merely marks an intensification of the controversy, recurrent throughout our history, concerning the legal effect of Article VI, Section 2, of the Constitution of the United States. Problems concerning the relative authority of treaties and other international …

Constitutional Law-Aliens-Power To Exclude And Deny Hearing, Lois H. Hambro S.Ed.

Michigan Law Review

In two similar cases, petitioners sought a writ of habeas corpus from federal district courts in order to obtain release from federal immigration authorities. Both were aliens who had been lawful permanent residents at the time they left the country. Mezei had allegedly gone abroad to visit his dying mother, and his return to the United States had been delayed by difficulty in securing an exit permit. Kwong Hai Chew had left the country to sail aboard a vessel of American registry, prior to which he had been screened by the United States Coast Guard. He had also served in …

Constitutional Law-Freedom Of Assembly-Equal Protection Of The Law, S. I. Shuman

Michigan Law Review

The ordinance here involved prohibited any person from addressing a political or religious meeting in any public park. At a meeting involving no disturbances or breaches of the peace, plaintiff, a Jehovah's Witness, was arrested when he addressed a meeting in a public park. The state supreme court upheld a conviction under the ordinance. Held, reversed. The principal case is on all fours with Niemotko v. Maryland. The state conceded at oral argument that the meeting was a religious one and that the ordinance as construed and applied did not prohibit church services in the park. Therefore, since …

Corporations-Appointment Of Receiver Solely For The Purpose Of Bringing Suit, William A. Bain, Jr. S.Ed.

Michigan Law Review

An ex parte petition was filed by a minority stockholder of a foreign corporation requesting the appointment of a special receiver for certain claims of the corporation against resident fiduciaries. The claims, which had not been prosecuted by the corporation, were about to be barred by the statute of limitations. A receiver was appointed and brought suit. The corporation appeared specially requesting that the order be set aside. Held, motion denied. A court of equity has inherent power to appoint a receiver for the assets of a foreign corporation in an ex parte proceeding instituted by a minority stockholder. …

Constitutional Law-Review Of State Court Determination-Supreme Court's Vacation Of State Court Judgment Without Giving Grounds For Reversal, Marcus A. Rowden S.Ed.

Michigan Law Review

The Supreme Court of the United States granted plaintiff's petition for certiorari to review a decision of the Supreme Court of California summarily denying plaintiff's application for habeas corpus. Previously the cause had been continued to enable petitioner to secure a determination of the California Supreme Court as to whether its judgment was intended to rest on an adequate independent state ground. It was later held that a letter from the clerk of that court was not a sufficient determination of that question, and petitioner was still unable to obtain that determination. Held, judgment of the Supreme Court of …

Labor Law-Labor-Management Relations Act-Anti-Featherbedding Provision, Walter H. Weiner S.Ed.

Michigan Law Review

The typographers union insisted that newspaper publishers, upon using advertising mats as molds for metal castings from which to print advertisements, pay typesetters, at regular rates, for setting up duplicate forms for such advertisements in the same manner as though mats were not used, which duplicate forms are ordinarily melted down without having been used. The musicians union insisted that a theater employ a local orchestra, as a condition of the union's consent to the local appearance of traveling bands, to play overtures, intermissions and chasers. The publishers association and the theater challenged these demands as attempts to exact payments …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of the Review.

Taxation-Federal Income Tax-Constitutionality Of The Clifford Regulations, Robert G. Russell S.Ed.

Michigan Law Review

Taxpayer created a five year irrevocable trust on December 1, 1941 for the benefit of a charitable foundation. She retained a reversion in the corpus but disclaimed any right to income. She did not retain, directly or indirectly, any interim control over the corpus or income. On December 1, 1942 the term of the trust was extended to December 1, 1951. Taxpayer did not report the income of the trust in her return. The Commissioner assessed deficiencies for 1946 claiming that the trust was for a term of nine years and that under the new ten year rule, the income …

Constitutional Law-Equal Protection-Validity Of State Restraints On Alien Ownership Of Land, Alfred W. Blumrosen S.Ed.

Michigan Law Review

In the short period of five years, action on three governmental fronts has solved one problem of state legislation which seemed to violate a basic premise of the equal protection clause of the Fourteenth Amendment. Congress, the Supreme Court and the courts of last resort of two states have acted to destroy the effectiveness of state laws which prohibited ownership of land by aliens ineligible for citizenship. These laws incorporated whatever classification Congress established for naturalization purposes into state statutes determining rights to own land. This process has resulted in recent years in discrimination against Orientals, particularly Japanese. The purpose …

Constitutional Law-Due Process-Use Of Television At Congressional Hearings, S. I. Shuman

Michigan Law Review

Defendant, not claiming constitutional protection against self-incrimination, refused to testify before a Senate committee on grounds that his "constitutional rights" would be violated if compelled to give testimony while being televised, photographed, etc. Cited for willfully and without justification refusing to testify on matters pertinent to the purpose of the inquiry, defendant was tried for contempt of Congress. Held, not guilty; defendant's refusal was justified. The court, after stating that there were no precedents, and that no constitutional issue was involved, seemed to rest its decision on the fact that the atmosphere of the forum did not lend itself …

Constitutional Law-Due Process-Validity Of State Statute Requiring Public Employees To Take Loyalty Oath, James W. Callison, S.Ed.

Michigan Law Review

A statute of Oklahoma required public employees to take an oath that, among other things, they were not, for five years previous had not been, and would not become, affiliated with an organization which advocated the overthrow of the Government of the United States or of the State of Oklahoma by force or violence or other unlawful means or which had been determined by the United States Attorney General to be a Communist front or subversive organization. A citizen and taxpayer sought to enjoin payment of salaries to teachers at Oklahoma A. & M. College who had not taken the …

Criminal Law-Immunity From Prosecution Statutes--Revocation Of License As Penalty Or Forfeiture, Richard W. Pogue S.Ed.

Michigan Law Review

Plaintiff, an architect, involuntarily testified as to facts involved in a bribery transaction, before a state attorney, a grand jury, and at the trial of members of the Board of Public Instruction for bribery and conspiracy to bribe. Subsequently the State Board of Architecture filed charges against him seeking to revoke his certificate, basing these charges on the same bribery transaction, in which he allegedly had participated. Plaintiff thereupon instituted suit for declaration of his rights and immunities. He claimed an immunity by virtue of a Florida statute which provided that in connection with certain crimes (including bribery) "no person …

Negligence-Contributory Negligence-Effect Of Violation Of Statute By Minor Plaintiff, Richard P. Matsch S.Ed.

Michigan Law Review

Plaintiff's decedent, a thirteen year old boy, was killed in a collision between his bicycle and defendant's automobile. Both vehicles were travelling in the same direction on a public highway when, according to the defendant's testimony, the boy suddenly made a left tum in front of the automobile and was struck. The defendant asserted that the child failed to give any signal indicating a tum and therefore violated the Utah statute prescribing rules of the road. Defendant moved for a directed verdict on the issue of contributory negligence charging that the conduct of the decedent was negligence per se. The …

Labor Law-Labor-Management Relations Act-Emergency Strike Provisions, Walter H. Weiner S.Ed.

Michigan Law Review

Suit by the United States, under authority of the National Emergency provisions of Title II of the Labor-Management Relations Act, to enjoin a strike in a single plant engaged in the manufacture of pipe used in the construction of atomic energy plants. The district court granted an injunction, and the labor organizations adversely affected thereby appealed. Held, affirmed. The threatened strike would have affected a substantial part of the atomic weapon industry and would have imperiled the national safety. United States v. United Steelworkers of America, C.I.O., (2d Cir. 1953) 202 F. (2d) 132.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this Review.

Equity-Criminal Contempt-Violation Of Court Order Or Decree-Attorney's Responsibility, Warren K. Urbom S.Ed.

Michigan Law Review

Employees of R, while on strike, picketed in the vicinity of a warehouse that was owned by X hut a part of which had been rented by R. The warehouse was served by two railroad spur tracks and two streets. Attempts to deliver goods to the warehouse via the railroad tracks were physically obstructed by the pickets, whereupon a temporary injunction issued restraining employees from "picketing ... plaintiff's railroad tracks and spur tracks or right of way or property in any manner whatsoever .... " Thereafter, on the strength of an attorney's advice, the employees maintained pickets fourteen …

Treaties Governing The Succession To Real Property By Aliens, Willard L. Boyd, Jr.

Michigan Law Review

Under customary international law no nation has the duty to grant to aliens the right to hold real property. Although international law accords to an alien the privilege of participating in the economic life of the state of his residence, this privilege does not encompass the right to hold real property. The right to succeed to and hold real property is a matter solely within the competence of a nation. It is for each nation exclusively to regulate the acquisition and tenure of real property. National authority in this regard can be traced to the concept that the sovereign may …

Judicial Techniques In Combating Tax Avoidance, Ralph S. Rice

Michigan Law Review

There is no problem today more fundamental in federal tax law than the rationale (or lack of it) that underlies the conduct of the courts in striking down tax avoidance devices and refusing to recognize business arrangements which meet statutory requirements for tax saving but exude an odor piscatorial.

Constitutional Law-Appellate Jurisdiction Over State Court Decisions-When Is A State Court Decision "Final", Marcus A. Rowden S.Ed.

Michigan Law Review

Plaintiff brought suit to enjoin peaceful picketing of an apartment project by defendant labor organizations. The Circuit Court, Montgomery County, Alabama granted temporary injunction ex parte. Defendants appealed to the Alabama Supreme Court which affirmed the trial court's order denying a motion to dissolve the injunction. Certiorari was sought and granted by the United States Supreme Court. Held, certiorari had been improvidently granted since the Alabama Supreme Court's determination had not constituted a final judgment or decree. Montgomery Bldg. and Constr. Trades Council v. Ledbetter Erection Co.,. 344 U.S. 178, 73 S.Ct. 196 (1952).

Taxation-Federal Income Tax-Payment To Lessee For Surrender Of Lease Taxable As Capital Gain, Theodore J. St. Antoine

Michigan Law Review

Taxpayer, a tenant in possession of premises under a lease, received a payment from the lessor to vacate and surrender the premises before the lease expired. The Tax Court decided that the payment was taxable only as a capital gain. On appeal, held, affirmed. Since the leasehold interest constituted property, its transfer by the lessee to the lessor was a sale of a capital asset under I.R.C., §117. Commissioner v. Golonsky, (3d Cir. 1952) 200 F. (2d) 72.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this Review.

Constitutional Law-Denaturalization Under The Immigration And Nationality Act Of 1952, Lois H. Hambro S.Ed

Michigan Law Review

On June 26th and 27th of 1952, the House of Representatives and the Senate, respectively, passed the Immigration and Nationality Act of 1952 over the President's veto. There are substantial differences between the denaturalization provisions of this new act and those of prior acts. Before this act, the denaturalization statute provided for the bringing of suits by the attorney general to revoke the judgment of naturalization and to cancel the certificate of naturalization on the ground of fraud or on the ground that naturalization had been illegally procured. The basic provision for denaturalization is now section 340, which provides for …

Evidence-Admissibility Of Expressions Of Pain And Suffering, Edgar A. Strause S.Ed

Michigan Law Review

Notwithstanding medical achievements, the human being has not yet been immunized from physical injury and the pain customarily attending such injury. This fact coupled with the ill-controlled fury of modem life has led to an enormous amount of personal injury litigation. Such litigation, with rare exceptions, presents an evidentiary feature of pain and suffering of the victim. Most often the problem arises where pain and suffering are an element of the damages, although it may likewise be involved in showing the nature or the extent of the physical injury.

A Decade Of Administrative Law: 1942-1951, Bernard Schwartz

Michigan Law Review

The past ten years have been particularly momentous ones in the development of American administrative law. It is, indeed, not too much to say that there are few, if any, aspects of that field which have not witnessed important changes during that time. It is for this reason that an analysis of administrative law developments during the past decade should prove useful. However valuable an annual survey of the law may be, it suffers from the shortness of the period which it covers. An analysis of developments during a decade enables a broader perspective to be obtained.

It will be …